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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20220323 DOCKET: C68749

Pepall, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

P.F. Appellant

Counsel: Kenneth W. Golish, for the appellant Jeffrey Wyngaarden, for the respondent

Heard: March 22, 2022 by video conference

On appeal from the conviction entered on October 1, 2020 by Justice George W. King of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of historical sexual offences involving his daughter. The offences were alleged to have occurred from infancy until she left home at age 17.

[2] The complainant testified to numerous incidents of abuse including vaginal intercourse and oral sex. In addition, she said that the appellant would lie on her bed and rub himself against her; shaved her legs close to her bikini line; moved his hand along her leg, thigh, and vaginal area while they were in the car; tackled her in the living room and ground his genital area into hers while laying on top of her; and entered the shower, assaulting her there. The complainant testified that the sexual activity occurred approximately twice per week on average, until she was 17. She could not estimate how many times it happened.

[3] The appellant testified in his own defence and categorically denied the allegations. He suggested that the complainant falsely accused him because he and his late wife had not accepted her gay lifestyle.

[4] The appellant raises several arguments on appeal, the substance of which all concern the trial judge’s credibility findings.

[5] There is no merit to the argument that the trial judge applied different levels of scrutiny to the evidence. The trial judge was entitled to accept the evidence of the complainant and to reject the evidence of the appellant. His findings are entitled to deference.

[6] The trial judge did not conclude that the complainant was credible simply because her testimony was consistent and detailed. He fully explained his credibility findings in comprehensive reasons. The matters the appellant raises as inconsistencies – whether the appellant had a crossbow, a black belt in karate, or had taken the complainant for an abortion – were peripheral to the allegations at the core of the case.

[7] The trial judge made no error in applying R. v. W.(D.), [1991] 1 S.C.R. 742. His reasons were neither “illogical” nor “irrational”. He properly instructed himself on the principles of that case and applied them carefully. The trial judge did not simply prefer the complainant’s evidence; he accepted her evidence and rejected the evidence of the appellant. This was his call to make and there is no basis to interfere with it on appeal.

[8] There were no significant misapprehensions of the evidence. The positioning of the Christmas tree and the description of the condition of the carpet in the living room were insignificant details relating to one alleged assault, not material misapprehensions. The evidence of the complainant’s aunt, L.C., that the complainant told her of the abuse decades earlier was relevant only to rebutting the allegation that the complainant had recently fabricated her complaint, and any mistake as to the date was insignificant.

[9] There was no misapprehension concerning the appellant’s tattoo. The trial judge accepted that the complainant became aware of the unique tattoo on the appellant’s inner thigh when he required her to perform sexual acts including oral sex. It was open to the trial judge to conclude that the complainant was able to describe the tattoo in detail because she was exposed to the appellant’s intimate areas for extended periods of time, consistent with her evidence of repeated abuse.

[10] Finally, the verdict was not unreasonable. The appellant simply repeats arguments already made and attacks the trial judge’s credibility findings, which as we have said, are entitled to deference. They can be supported on any reasonable view of the evidence.

[11] The appeal is dismissed.

“S.E. Pepall J.A.”

“M. Tulloch J.A.”

“Grant Huscroft J.A.”