Publication Ban Warning
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220427 Docket: C68670
Judges: Trotter, Zarnett and Favreau JJ.A.
Between: Her Majesty the Queen Respondent
and
Steve D’Silva Appellant
Counsel: Brian Brody, for the appellant Natalya Odorico, for the respondent
Heard: April 8, 2022
On appeal from the convictions entered by Justice Chris de Sa of the Superior Court of Justice on December 20, 2019, with reasons reported at 2019 ONSC 7555.
Reasons for Decision
Introduction
[1] The appellant was charged with various offences for having sex with two underage girls: H.Q, who was 14, and T.O., who was 12.
[2] In the middle of the trial, the Crown stayed the charges concerning H.Q. In relation to T.O., the appellant was found guilty of sexual interference (Criminal Code, R.S.C. 1985, c. C-46, s. 151), invitation to sexual touching (s. 152), and sexual assault (s. 271). [1]
[3] The appellant appeals his convictions. He submits that the trial judge rendered an unreasonable verdict that was tainted by misapprehensions of the evidence. The appellant further contends that the trial judge failed to engage in a proper analysis of the principles in R. v. W.(D.), [1991] 1 S.C.R. 742 and that his reasons were insufficient on this issue.
[4] We do not accept these submissions. The appellant essentially asks us to set aside the trial judge’s credibility findings and make our own, but this time in his favour. We decline to do so. A trial judge’s credibility findings are entitled to a high level of appellate deference: R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at paras. 81 and 89.
Factual Background
[5] The appellant was 26 years old at the time of the offences. He met H.Q. on a dating site. They eventually made plans to meet in person. On that day, April 17, 2017, H.Q. brought along her friend, T.O. The appellant drove the three of them to a hotel. It was undisputed at trial that the appellant engaged in sexual activity with both girls. The evening came to an end when both girls had to return to the group home where they were residents. It was at this time that T.O. told the appellant that she was only 12 years old.
[6] Earlier in the evening, the appellant picked up H.Q. and T.O. in his car at a pharmacy behind the group home. The appellant was unaware that they were residents of the group home. He testified that he thought the two of them were over the age of 16. They chatted in the car before deciding to go to a hotel. They attempted to obtain alcohol along the way, but the LCBO they stopped at was closed. They proceeded to the hotel.
[7] The appellant booked a hotel on a website called Hotels.ca. He selected a hotel in Vaughan, even though it was about an hour away from where he picked up H.Q. and T.O. The appellant explained that he did so because it was the first hotel that came up in his search. He denied the suggestion, put to him in cross-examination, that he picked that location so he could isolate H.Q. and T.O. from people that might know them. When they arrived at the hotel, all three presented themselves at the check-in desk.
[8] Once in the hotel room, the appellant had sexual intercourse with H.Q. H.Q. then went to the bathroom. While she was in the shower, the appellant had sex with T.O. Afterwards, they left the hotel, got pizza, and then returned to the hotel. Upon their return, the appellant engaged in further sexual activity with T.O.
[9] As the evening progressed, a staff member from the group home repeatedly called and texted H.Q, imploring her to return with T.O. T.O. only learned of the messages at the end of the night, at which point she told the appellant she was 12. She testified that the appellant seemed shocked upon hearing this news. The appellant drove H.Q. and T.O. back to the area of the group home. As she got out of the car, T.O. told the appellant she loved him and kissed him on the cheek. He was arrested and charged a few days later.
[10] The only issue at trial was whether the appellant knew that T.O. was under the age of 16. The appellant testified that he thought that both H.Q. and T.O. appeared to be 18. He did not believe that they were under 16; he would not have hung out with them, nor would he have had sex with them had he believed otherwise. At trial, the appellant relied on photographs of H.Q. and T.O., as well as his discussions with them, as the platform for his belief that they were both of age. He said that H.Q. showed him a photo of T.O., topless, with an older male masturbating in the background. The appellant never asked either girl their ages.
[11] The pivotal point of contention centred on T.O.’s testimony that, not long after she was in the appellant’s car (and at H.Q.’s direction via a note she showed T.O. on her iPod), T.O. told the appellant that she was 14. H.Q. testified that she did not remember T.O. saying she was 14, but she did not hear everything that was said because she was listening to music on her earbuds. The appellant denied that T.O. ever said these words; the first time he learned that T.O. was not of age was at the end of the night when she said she was 12. He was very upset when he heard this and said, “What the fuck?”
[12] During closing submissions, the appellant’s counsel conceded that, if the trial judge believed T.O.’s evidence that she told the appellant she was 14, this would be fatal to his position; it would fix the appellant with actual knowledge that T.O. was under the age of 16. However, defence counsel strenuously argued before the trial judge (and before us) that T.O. should be disbelieved on this issue because of the many shortcomings in her evidence, as well as fundamental inconsistencies between T.O.’s evidence and the evidence of other witnesses who were not discredited.
The Trial Judge’s Reasons
[13] In lengthy reasons for judgment, the trial judge considered the evidence of all witnesses. He reviewed the relevant Criminal Code provisions concerning consent, particularly s. 150.1(4). He canvassed the reasonable steps jurisprudence in some detail. However, his ultimate conclusion of guilt rested on his finding that the appellant had actual knowledge that T.O. was underage. The trial judge made the following findings, at paras. 155-156:
The way in which she [T.O.] explained the events both in her original statement and in her testimony at trial was very genuine. Throughout the course of her evidence, she was also adamant that she told the accused she was 14. I believe her.
I reject the accused’s evidence that he was mistaken about [T.O’s] age. I find that the accused was well aware she was underage (under 16 years of age), I accept that [T.O.] told the accused she was 14, and despite her age, he chose to engage in sexual activity with her. [Emphasis added.]
[14] The trial judge rejected the appellant’s contention that T.O. was unreliable and her evidence should be disbelieved. As the trial judge said at paras. 145 and 149:
I recognize the various inconsistencies identified by the defence. I note that [T.O.]’s chronology of sexual activities in the hotel is not clear. Her accounts have varied in detail at different times. However, I find that she was being sincere in her attempt to recount the events that occurred. She was trying to relay the events as she remembered them. [Emphasis added.]
Contrary to the defence submission, I do not find that [T.O.] was trying to embellish her account or enhance the events in any way. Nor do I agree with the defence suggestion that she has inadvertently adopted the views of others. I also disagree that the inconsistencies in her account bear on her credibility or on the reliability of her evidence in general. [Emphasis added.]
[15] The trial judge did not accept the appellant’s account on most of what happened that night. On the issue of his belief about T.O.’s age, he said, at para. 156:
I reject the accused’s evidence that he was mistaken about [T.O.’s] age. I find that the accused was well aware she was underage (under 16 years of age), I accept that [T.O.] told the accused she was 14, and despite her age, he chose to engage in sexual activity with her.
[16] The trial judge also rejected the appellant’s evidence about why he chose the hotel in Vaughan. He agreed with the Crown’s suggestion that the appellant selected that hotel to avoid encountering others who may know the girls or himself.
Analysis
[17] The appellant attacks the trial judge’s credibility findings, especially as they relate to T.O. He submits that the trial judge erred in law by accepting her evidence. He points to the many shortcomings in her evidence. He submits that the trial judge should have placed greater reliance on the evidence that contradicted T.O.’s evidence.
[18] As noted above, the appellant asks us to substitute our own credibility findings for those of the trial judge, which we are unable to do: G.F., at para. 81.
[19] The critical factual issue at trial was whether T.O. told the appellant that she was 14 when they were in his car. The trial judge understood the defence position that, because of shortcomings in her evidence as a whole, T.O.’s evidence on this issue could not be accepted. The trial judge grappled with T.O.’s evidence, in the context of the evidence as a whole, and accepted her evidence on this point, as he was entitled to do. Although the trial judge did not address each and every alleged inconsistency in T.O.’s evidence, he was not required to do so. He dealt with the majority of them and explained why he still believed her evidence on the essential issue.
[20] The trial judge also considered inconsistencies between T.O.’s evidence and two other Crown witnesses. One witness, a youth services worker, testified that T.O. said the appellant took them to his home to have sex. The other, a staff member of the group home, testified T.O. told her she had sex with the appellant because he had a gun. The trial judge found that these conflicts with T.O.’s account were likely the result of confusion on the part of the two witnesses. In any event, he found these details to be unimportant. [2] As to the discrepancies between H.Q.’s and T.O.’s evidence, the trial judge found that H.Q. was not credible on several grounds and accordingly assigned her testimony little weight. These were findings that were open to the trial judge to make. The verdicts were not unreasonable.
[21] We dismiss this ground of appeal.
[22] The appellant further submits that the trial judge erred in his application of the principles in W.(D.) and that his reasons on this issue were insufficient. Again, we disagree.
[23] The trial judge articulated the burden of proof in his reasons. He explained why he could not accept the appellant’s evidence on important issues. The appellant’s assertion that T.O. appeared to be 18 was undermined by the trial judge’s other findings that T.O. appeared child-like in her video statement, and in her testimony such that, while she may have initially appeared older than she was, it would have soon become apparent that she was much younger. T.O.’s true age would have become evident through both the appellant’s prolonged interaction with her and during the sexual activity, which the trial judge accepted was the first time she had ever had sex. The trial judge was entitled to evaluate the appellant’s evidence in light of this evidence.
[24] In a similar vein, the appellant further submits that the trial judge erred in rejecting the appellant’s evidence about his choice of a hotel. He submits that the trial judge improperly took judicial notice of such matters and did not properly explain why he rejected the appellant’s evidence on this issue. We do not accept these submissions. In evaluating this finding, we must consider it in the context of the record as a whole: R. v. M.(R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 37. The appellant was cross-examined extensively on this issue. While the trial judge might have further explained why he rejected the appellant’s evidence on this point, he was entitled to disbelieve him. Again, we see no error.
[25] In conclusion, considering the trial judge’s reasons as a whole, it is apparent why the trial judge accepted T.O.’s evidence and why the appellant’s evidence was rejected and failed to raise a reasonable doubt. His conclusions were sufficiently explained such that the appellant would know exactly why he was convicted.
Disposition
[26] The appeal is dismissed.
“Gary Trotter J.A.”
“B. Zarnett J.A.”
“L. Favreau J.A.”
Footnotes
[1] The sexual assault charge was stayed based on the principles in Kienapple v. R., [1975] 1 S.C.R. 729.
[2] It was not contentious at trial that the appellant had sex with T.O. in a hotel room, not his house. Moreover, H.Q. had told the authorities that she saw a gun in the appellant’s car.