WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO DATE: 20211220 DOCKET: C68825

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Hubert Nathanial Shilling Appellant

Counsel: Lynda Morgan and Laura Metcalfe, for the appellant Michael Dunn, for the respondent

Heard: December 16, 2021

On appeal from the convictions entered by Justice Vanessa V. Christie of the Superior Court of Justice on August 28, 2019, with reasons at 2019 ONSC 5038, and from the sentence imposed on January 31, 2020, with reasons at 2020 ONSC 1193.

REASONS FOR DECISION

I. INTRODUCTION

[1] The trial in this judge-alone proceeding was not complex. It took less than a full day of court time and turned on whether the trial judge accepted the complainant’s evidence. The trial judge delivered her reasons the day after trial. After finding the complainant both credible and reliable, the trial judge convicted the appellant of two counts of sexual interference. He was sentenced to four and a half years in prison. He appeals from conviction and seeks leave to appeal sentence. He also brings a fresh evidence motion in support of his sentence appeal.

[2] At the conclusion of the oral hearing of the appeal, we advised the parties that the motion and the appeals were dismissed, with reasons to follow. These are the promised reasons.

II. BACKGROUND IN BRIEF

[3] The appellant and the complainant’s mother were in a romantic relationship. The complainant moved in with the appellant in April or May 2015; her mother and two siblings moved into the appellant’s residence in June 2015. The family moved out in October 2016, at the appellant’s request, in part because of the complainant’s behaviour and her disobedience in following the appellant’s house rules, including doing chores.

[4] Around December 2016, the complainant’s mother and the appellant became friends again. The family began visiting at the appellant’s house and, at times, the children were left with the appellant when the complainant’s mother went to work.

[5] The complainant said that two incidents of sexual assault occurred while she, her mother, and her siblings lived with the appellant. The first incident happened under the blankets on a bed in the appellant’s bedroom while her siblings were sitting on the floor watching a movie in the same room. The second occurred on the couch while her mother was at work and her siblings were at the park. The complainant disclosed the incidents to her mother in the summer of 2017.

[6] At trial, the only issue was whether the events actually occurred, a matter which turned on the credibility and reliability of the complainant’s testimony. The trial judge found that, despite some minor inconsistencies in the complainant’s testimony and recollection: she was an honest witness; her testimony was detailed in many respects; she considered her answers when she was unsure of them; she admitted when she did not remember something; and, she was not shaken in cross-examination in any significant way. After noting that corroboration is not required, the trial judge found that parts of the complainant’s testimony were corroborated by her mother’s evidence.

[7] There are two aspects of the defence position at trial that are relevant to this appeal. The first was the defence suggestion that the complainant had a motive to fabricate the incidents – she did not want to return to the rules and chores of the appellant’s household and was concerned that the family was slipping back into that routine. The second was that the complainant’s account of the assaults was inherently implausible.

[8] The trial judge rejected the suggestion that the complainant was motivated to lie because she was concerned about having to move back with the appellant and she did not like the house rules. When the complainant disclosed the incidents to her mother, there was no suggestion that she would have to live with the appellant again because the relationship between her mother and the appellant at that time was “simply a friendship”.

[9] The trial judge also rejected the defence suggestion that the incidents were improbable or impossible. The evidence about the couch and those involved made that incident neither improbable nor impossible. In terms of the bedroom incident, the trial judge found that the appellant could hold the complainant down with his arm and pull down both her pants and his. She also found that he tried to cover up the activities by placing a blanket over them. She further found that the other children in the room, who were only seven or eight years of age, were on the floor looking in the other direction while watching a movie, and there was no significant noise that would have attracted their attention.

III. THE CONVICTION APPEAL

[10] The appellant submits that the trial judge erred in:

i. failing to properly consider the complainant’s motive to lie;

ii. assuming the appellant’s guilt and relying on unsupported assumptions when assessing how the risk of detection impacted the complainant’s credibility (the “circular reasoning argument”); and

iii. finding the mother’s evidence corroborated the complainant’s testimony.

[11] In our view, the trial judge committed none of the alleged errors.

IV. ANALYSIS

Proper Consideration of the Complainant’s Motive to Lie

[12] The appellant contends that the trial judge used a purely “objective” analysis to decide whether the complainant had a motive to lie. We see nothing in this contention.

[13] The trial judge did not use words associated with an “objective” analysis, such as the “reasonable person”. Her reasons are grounded in her findings of fact about what was happening in the complainant’s life at the time that she disclosed the incidents to her mother. We also note that the suggestion that the complainant lied because she did not want to return to the appellant’s home because of his rules was never put to the complainant. And, in any event, as the trial judge found, at the time of disclosure there was no suggestion that the complainant would have to live with the appellant again.

No Circular Reasoning

[14] The appellant submits that the trial judge “assumed his guilt” in rejecting the defence argument that it would not make sense that the appellant would assault the complainant while her siblings were in the same room.

[15] Again, we see nothing in this submission. The trial judge did not assume the appellant’s guilt. Rather, she explained why she accepted the complainant’s description of the assault in the bedroom, a summary of which can be found above. There is nothing circular in her reasoning; it is solidly grounded in the evidence.

No Error in the Use of the Mother’s Evidence

[16] The appellant submits that the trial judge fell into error when she said that the evidence of the complainant’s mother “corroborated” that of the complainant. We see nothing in this submission.

[17] As already noted, the trial judge began by observing that corroboration was not necessary. And, the trial judge did not use the mother’s evidence to bolster the complainant’s credibility. The trial judge summarized those parts of the mother’s evidence that confirmed the complainant’s evidence on matters such as the complainant’s behaviours that led to her moving to the appellant’s home, the complainant’s dislike of the rules at the appellant’s home, that they all watched movies together, and the setup of the appellant’s home.

V. THE FRESH EVIDENCE MOTION

[18] The appellant moves to have fresh evidence admitted in support of his sentence appeal. Based on the fresh evidence, he asks this court to reduce his sentence from four and a half years to three years.

[19] The fresh evidence relates to two matters that occurred while the appellant has been serving his custodial sentence. First, the appellant contracted COVID-19 in December 2020. His symptoms lasted for approximately four days and he spent that time in isolation in a cell. He says he experienced “heightened anxiety” as a result of the COVID-19 diagnosis and isolation. Later that month, he had a major anxiety attack. Second, in February 2021, a psychodiagnostics assessment report (the “Report”) said the appellant had post-traumatic stress disorder (“PTSD”).

[20] The fresh evidence consists of a short affidavit from a lawyer who works in the law firm that represents the appellant. The affidavit is based on the following documents, which were appended to the affidavit: media articles; a document from Correctional Services Canada dated May 25, 2021 regarding the status of COVID-19 in penitentiaries; four inmate communiques from December 2020 and January 2021 related to Joyceville Institution’s response to COVID-19; a letter advising the appellant he had contracted COVID-19; and, the Report.

[21] In our view, the proposed fresh evidence could not be expected to affect the sentence. Moreover, some of it – such as the media articles – is inadmissible because it constitutes untestable hearsay. The Report should not be admitted because it is not “fresh” – it simply confirms evidence already before the trial judge. An example of this is the information on the appellant’s difficult childhood. To the extent that the PTSD diagnosis is “fresh”, that diagnosis could have been provided prior to sentencing. The evidence on the appellant’s experience with COVID-19 could not be expected to change the sentence which must remain proportionate to the gravity of the offence and the moral blameworthiness of the appellant: R. v. Morgan, 2020 ONCA 279, at paras. 10-11.

[22] While COVID-19 was a collateral consequence for the appellant, it cannot be used to reduce the sentence to a point where it is no longer fit: Morgan, at paras. 9-11. For the reasons given on the sentence appeal, below, a change in sentence would render the sentence no longer fit.

[23] The appellant’s specific evidence of contracting COVID-19 and any health-related problems that may arise from his incarceration are matters best dealt with by the Parole Board of Canada through the powers provided to it under the Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 121(1): R. v. Premji, 2021 ONCA 721, at para. 10.

VI. THE SENTENCE APPEAL

[24] The appellant submits that the trial judge erred by failing to take into account the totality principle and his sentence is “manifestly unfit”.

[25] We disagree.

[26] In her reasons, the trial judge stated she was required to take totality into account when imposing sentence and it is evident on a reading of her reasons that she did so.

[27] As for the fitness of sentence, we note the following. The appellant was in a position of trust in relation to the complainant, having taken on the role of a step-parent. He committed two separate, serious acts of sexual interference on the complainant when she was a child of between 11 and 14 years of age. And, he has a related criminal record, having a prior conviction for sexual assault. Mid-single digit penitentiary terms for sexual offences against children are normal: see R v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at paras. 5, 114. The sentence imposed here falls within that range.

VII. DISPOSITION

[28] Accordingly, the motion to admit fresh evidence and the conviction appeal are dismissed. While leave to appeal sentence is granted, that appeal is also dismissed.

“E.E. Gillese J.A.”

“David Brown J.A.”

“S. Coroza J.A.”