COURT OF APPEAL FOR ONTARIO

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), 486.4(2), 486.4(2.1), 486.4(2.2), 486.4(3) or 486.4(4) or 486.6(1) or 486.6(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

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.

CITATION

R. v. A.K., 2022 ONCA 508

DATE

20220704

DOCKET

C67974

Trotter, Sossin and Favreau JJ.A.

BETWEEN

Her Majesty the Queen
Respondent

and

A.K.
Appellant

Eric Neubauer, for the appellant
Natalya Odorico, for the respondent

Heard: June 1, 2022

On appeal from the conviction entered on September 5, 2019, and sentence entered on August 5, 2020, by Justice Bonnie R. Warkentin, R.S.J., of the Superior Court of Justice, with reasons for judgment at 2019 ONSC 5160, and reasons for sentence at 2020 ONSC 4727.

Sossin J.A.:

[1] The appellant was convicted of sexual touching and sexual assault. He argues that the trial judge failed to properly assess his evidence, reversed the burden of proof and provided inadequate reasons. The appellant also appeals against the sentence of eight years imposed by the trial judge.

[2] For the reasons that follow, I am not persuaded that the trial judge committed any of these errors and would dismiss the appeal against the appellant’s conviction.

[3] I also find no basis for appellate intervention in the sentence imposed by the trial judge.

FACTS

[4] The complainant, A.A., who was 18 at the time of the trial, testified the abuse took place between October 2008 and December 2014 and consisted of approximately 15-20 incidents. A.A. gave evidence of five different occasions during which the appellant, her great-uncle, engaged in sexually inappropriate conduct with her, ranging from sexual touching to sexual assault. These incidents took place when A.A. was between 7 and 11 years old.

[5] Most of the incidents took place on the appellant’s property, a forty-acre farm near Thunder Bay, Ontario. There were no witnesses to any of the abuse.

[6] The first and third incidents consisted of sexual assaults in the bedroom of the house. During the first incident, A.A. was 7 years old and alone with the appellant in his home. He told her to lay on the bed, where he began to massage her. He then flipped her over, pulled down her pants, pinned her arms over her head, and began touching her vagina with his fingers, including penetrating her with his finger. The third incident happened when A.A. was sleeping over, sharing a bed with her aunt and the appellant. While A.A.’s aunt left to take a shower, the appellant starting putting his fingers into A.A.’s vagina and then inserted his penis.

[7] The second incident consisted of a sexual assault in a hidden loft room in the garage, when A.A. was 8 years old, during a family visit. The appellant told A.A. he wanted to share a secret space with her. He took her into the garage, where he showed her a secret room, which A.A. described as a clubhouse. To access it, they had to climb a step-ladder through a door in the ceiling. Once they were inside, the appellant began rubbing A.A.’s back, pulled down her pants, and put his penis into her mouth. She was on her back and the appellant pinned her down by putting his legs into her armpits. She testified to feeling very frightened because she was choking. The accused then slid backward and inserted his penis into her vagina.

[8] The fourth incident involved sexual touching in an old, green car on the property. A.A. sat in the passenger seat and the appellant in the driver’s seat. The appellant leaned over A.A. and showed her how to recline the seat. He started rubbing her legs, then lifted her shirt, and pulled down her pants. The appellant held her arms above her head and started touching her vagina with his fingers. A.A. described screaming, that she was very upset, and that the appellant then stopped.

[9] The fifth incident involved a sexual assault in A.A.’s house during a family gathering around Christmas, when A.A. was 11 years old. A.A. wanted to have some plaques and photos she had received hung in her bedroom. A.A. and her mother asked the appellant to help. A.A.’s mother left them in the bedroom together. A.A. testified that the appellant locked the bedroom door from the inside. As A.A. was handing the appellant a picture to hang, he began rubbing her back. He then pulled down her pants and, first, put his finger and, then, his penis into her vagina. A.A. testified that she did not scream and did not know how to tell anyone what was happening.

[10] A.A. disclosed the abuse to her boyfriend in March 2017, when she was 16, and, shortly thereafter, to her mother, who contacted the police.

TRIAL

[11] The witnesses who testified at the trial were A.A., the appellant, the appellant’s wife, Mrs. K., A.A.’s mother, Ms. W., and Constable Elvish, who was part of the Thunder Bay Police team that searched the appellant’s property.

[12] The central issue at trial was credibility. The trial judge instructed herself on the principles arising from R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, summarizing those principles as follows, at para. 57: “First, if you believe the evidence of the accused, you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”

[13] The trial judge reviewed the evidence relating to each of the five incidents of alleged sexual assault, sexual touching and forcible confinement. The trial judge set out the position of the defence in relation to the alleged incidents, including the unlikelihood and implausibility of A.A.’s account of certain of those incidents.

[14] The trial judge found A.A. to be credible and “unshaken” on cross‑examination. By contrast, she did not believe the evidence of the appellant.

[15] On this basis, she convicted the appellant on two of the counts on which he was charged: sexual touching and sexual assault.

ANALYSIS

[16] The appellant contends that the trial judge made four errors:

1. The trial judge failed to properly address the appellant’s evidence showing the implausibility of the crimes, conflating opportunity with whether the appellant actually engaged in the conduct alleged;

2. The trial judge reversed the burden of proof;

3. The trial judge failed to provide adequate reasons; and

4. The trial judge imposed a sentence that was too high.

[17] I will address each issue in turn.

(1) The trial judge did not fail to address the appellant’s evidence

[18] The appellant argues that the trial judge failed to properly address his evidence, which included a denial of all the conduct alleged.

[19] The appellant also argues that the trial judge failed to consider the implausibility of the complainant’s allegations. For example, according to A.A., after the assault in the loft room in the garage where she had needed his assistance to access up a ladder, the appellant left her to make her own way down and out of the building. On another occasion, the complainant testified she was assaulted in a bedroom of a small house with 20-40 family members in the other room. According to the appellant, such a brazen assault without detection or a noticed change in demeanour on the part of either the appellant or A.A. was implausible.

[20] The respondent argues that the trial judge addressed the implausibility arguments in two ways. First, she rejected the contention that a certain response to a sexual assault was to be expected, while another response was implausible. Second, the trial judge found there was opportunity for the appellant to commit the assaults against the complainant notwithstanding their proximity to others.

[21] I agree. The trial judge was clear in her review of the defence’s position on the implausibility of the assaults and her response to it. She stated, at paras. 74‑76:

[74] In this case, the defence invited the court to discount the credibility of A.A. and find it implausible that she would not have disclosed, even inadvertently, the allegations of sexual abuse after they occurred. He questioned A.A.’s ability to maintain composure after the assaults such that no adult was aware of something traumatic having occurred. He questioned why A.A.’s aunt and mother did not observe some evidence of trauma, either emotionally or physically on a child so young, if A.A. was telling the truth at trial.

[75] The defence also questioned the three-year delay that occurred before A.A. finally disclosed the abuse. He found the fact that she disclosed that abuse to her boyfriend rather than to her mother undermined her credibility. He also noted that A.A.’s testimony that she had been distancing herself from the accused after she turned 13 did not accord with the photographic evidence and evidence of text message communications with A.A.’s aunt.

[76] I disagree with defence counsel. It would be incorrect if I discounted A.A.’s credibility because she did not demonstrate fear or seek help from her mother or other family members immediately after one or more of the incidents of alleged sexual abuse or if I find her evidence is less credible because she delayed disclosing the alleged abuse. To assess her credibility on those bases would be to rely on generalized and stereotypical assumptions of how a victim of sexual abuse ought to behave.

[22] The trial judge also clearly accepted A.A.’s evidence with respect to opportunity. The trial judge stated that A.A.’s account of the assaults was unshaken on cross-examination and “[i]n many respects her evidence was supported by the testimony of other witnesses as to time and place and the opportunity”: at para. 87.

[23] In my view, there is no basis for appellate intervention with these findings. I would dismiss this ground of appeal.

(2) The trial judge did not reverse the burden of proof

[24] The appellant concedes that the trial judge instructed herself properly on the presumption of innocence in a case which turned on assessments of credibility. When assessing the evidence, however, the appellant argues the trial judge shifted that burden, observing that the testimony of certain witnesses left her with doubts about his evidence rather than whether his evidence, or the evidence of others, raised a reasonable doubt as to his guilt.

[25] For example, the appellant refers to the following passage from the trial judge’s reasons, at para. 85:

Similarly, Ms. W testified that the accused often went to take naps or sit in the old car on the property when she was at the K home with the children. She testified that he did this because it was a way for him to unwind after work. The accused’s adamant denial that he ever sat in that car for this or any other purpose also leaves me in doubt about his testimony. (Emphasis added.)

[26] According to the appellant, this passage and others where the trial judge indicated being “troubled” by the evidence of the appellant give rise to the impression that the appellant had to disprove the allegations against him.

[27] I do not accept this submission. In my view, the trial judge did not shift the burden of proof, but rather in the passage above and elsewhere explained why she did not believe the evidence of the appellant and why his evidence did not leave her with a reasonable doubt as to his guilt.

[28] The appellant also takes issue with two instances in which the trial judge stated that A.A.’s credibility was enhanced because the appellant agreed with certain aspects of her testimony. In one instance, A.A. alleged that she shared a bed with the appellant and Mrs. K. Both the appellant and Mrs. K. confirmed this did happen on one occasion. In the second instance, the appellant conceded that he had shown the complainant the secret room in the garage.

[29] The appellant contends that the trial judge used the consistency between the testimony of A.A. and the appellant in these instances to bolster the credibility of A.A. but diminish the credibility of the appellant. This concern is part of a larger one. According to the appellant, the trial judge conflated the confirmation that the appellant had opportunity to commit the sexual assault with proof that he did in fact do so. As the appellant puts it, “the trial judge appears to have found that because opportunity for the assaults existed, they happened.”

[30] The appellant relies on the distinction drawn by this court in R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 47, that a finding of credibility is distinct from finding beyond a reasonable doubt that an offence has occurred.

[31] I do not accept that the trial judge was blind to this distinction in this case. Indeed, notwithstanding that the trial judge found A.A. credible, the trial judge acquitted the appellant on the charge of unlawful confinement and the stand-alone count of invitation to sexual touching.

[32] With respect to the remaining two counts on which the appellant was convicted, the trial judge stated clearly she was considering all the evidence and that, based on that consideration, she was left with no reasonable doubt about the appellant’s guilt. She stated, at para. 92:

Using the test in W.(D.), I do not believe the evidence of the accused, nor am I left in reasonable doubt about his testimony. I find, based upon all the evidence that I have accepted, that I am convinced beyond a reasonable doubt about the guilt of the accused with respect to counts 1 and 3 on the indictment, touching for a sexual purpose contrary to s. 151 of the Code and sexual assault contrary to s. 271 of the Code. (Emphasis added.)

[33] I see no error in the trial judge’s analysis and would dismiss this ground of appeal.

(3) The trial judge provided adequate reasons

[34] The appellant argues that the trial judge failed to address his evidence in any meaningful way or explain why she disbelieved his statement that he never touched A.A. in a sexual way. As a result, according to the appellant, the basis for the conviction is unclear.

[35] The respondent argues that the trial judge’s reasons explain what she decided and why. According to the respondent, the trial judge focused on the critical evidence, namely, whether the complainant’s evidence satisfied her beyond a reasonable doubt as to the allegations of sexual abuse. The trial judge explained why she was left with no reasonable doubt notwithstanding the defence’s evidence and the defence’s submissions on the weakness of the complainant’s evidence.

[36] In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 42, Binnie J. reiterated that “deficiency in reasons, by itself, is not a stand-alone ground of appeal.” As Karakatsanis J. explained in R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 68, there will not be a reversible error if the reasons are “sufficient in the context of the case for which they were given.” This test calls for a functional and contextual reading of a trial judge's reasons: G.F., at para. 69.

[37] My task is not to finely parse the trial judge's reasons in a search for error, but rather to “assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review”: G.F., at para. 69. In this analysis, the trial judge’s reasons are to be evaluated from a stance of deference.

[38] As McLachlin C.J., as she then was, stated in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 17, "The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded." Appellate inquiry should be directed at whether the reasons respond to the live issues in a case: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31.

[39] In assessing the sufficiency of the trial judge’s reasons, it is important to review the record. If the trial reasons do not explain the “what” and the “why” but the answers to those questions are clear in the record, there will be no error: G.F., at para. 70, citing R.E.M., at paras. 38-40, and Sheppard, at paras. 46 and 55.

[40] The trial judge’s reasons must be both factually and legally sufficient. Factual sufficiency is concerned with what the trial judge decided and why – ordinarily a very low bar, especially with the ability to review the record: G.F., at para. 71, citing Sheppard, at para. 55. Even if the trial judge expressed themselves poorly, factual sufficiency is established if the appellate court understands the “what” and the “why” from the record: G.F., at para. 71, citing Sheppard, at para. 52. It will be “very rare” where neither the aggrieved party nor the appellate court understands the factual basis of the trial judge’s findings: G.F., at para. 71, citing Sheppard, at paras. 50 and 52.

[41] Legal sufficiency is concerned with the aggrieved party’s ability to meaningfully exercise their right of appeal: G.F., at para. 74, citing Sheppard, at paras. 64-66. As Karakatsanis J. explained in G.F., “Lawyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error has occurred”: at para. 74, citing Sheppard, at paras. 46 and 55. This will be “highly context specific” and require an assessment in light of the live issues at trial: G.F., at para. 74. Keeping in mind the presumption of correct application, there is no obligation on the trial judge “to expound on features of criminal law that are not controversial in the case before them”: G.F., at para. 74.

[42] Applying these principles, the trial judge has met the threshold of factual and legal sufficiency in her reasons, read in context and as a whole.

[43] I do not accept the appellant’s characterization of the trial judge’s reasons as failing to assess the appellant’s credibility, and consequently, unclear as to the basis for the conviction. While it would have been preferable for the trial judge to elaborate on her disbelief of the appellant’s testimony that he never touched A.A. sexually, her review of the evidence of the five incidents alleged by A.A. makes the basis for her findings clear.

[44] She clearly stated that she disbelieved the appellant and, as described above, explained inconsistencies in the appellant’s testimony, specifically that she was “troubled” by the appellant’s claim that the room in the garage where one of the incidents occurred was not a secret and that he never sat in the abandoned car on the property where another of the incidents was alleged to have occurred.

[45] Returning to the Supreme Court’s words in R. v. R.E.M., at para. 55, the trial judge “seized the substance of the critical issues at trial” by focusing on the credibility of the key witnesses. In my view, the trial judge’s reasons, considered with the evidentiary record, reveal the basis for the verdict reached.

[46] I see no palpable and overriding error in the sufficiency of the trial judge’s reasons.

(4) The trial judge committed no error in the sentence imposed

[47] Appellate intervention in a decision on sentencing is warranted only where the trial judge has committed an error in principle in sentencing the appellant: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 41.

[48] In this case, the appellant argues that whether there was “use of force” during the sexual assault was contested, and therefore should not have been accepted by the trial judge as an aggravating factor in the absence of a finding that the use of force was in fact present.

[49] The appellant was sentenced to 8 years, less 5 months’ credit for pre-trial custody. The sexual assault conviction was stayed pursuant to the Kienapple principle.

[50] The trial judge instructed herself on the correct sentencing principles.

[51] The trial judge considered aggravating factors, including that a) the offender was in a position of authority and trust over A.A. and was a much older family member; b) A.A. was very young when the first assault occurred, and the assaults continued for almost six years; c) the sexual assaults included penile penetration; and d) there was some use of force during the assaults, including pinning A.A. down and causing A.A. to choke.

[52] With respect to the use of force, the trial judge had recounted A.A.’s evidence of the assault in the garage as follows, at para. 7: “She was on her back and the accused pinned her down by putting his legs into her armpits. She described feeling very frightened because she was choking.”

[53] On this record, and in light of the trial judge accepting that the assault was proven beyond a reasonable doubt, it was open to the trial judge to include the use of “some force” against A.A. as an aggravating factor in his sentencing.

[54] The trial judge also considered mitigating factors including that a) the appellant had no prior criminal record; and b) the appellant is in a stable, long-term relationship and has strong family and community support. The trial judge noted that the primary sentencing objectives for offences against children under 18 are denunciation and deterrence. The fact that this was a first conviction against the appellant was not a mitigating factor sufficient to depart from the sentencing range of mid to upper-level single digits. The trial judge held that an 8-year sentence was fit, less 5 months of credit for pre-trial custody, in addition to ancillary orders.

[55] I see no error of principle with respect to the trial judge’s consideration of mitigating and aggravating factors in sentencing the appellant.

[56] The appellant also contends that additional credit should be given because of the stringent bail conditions, pursuant to R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (Ont. C.A.).

[57] In R. v. Downes, the Court of Appeal held that time spent under stringent bail conditions, such as house arrest, may be taken into account as a relevant mitigating circumstance on sentence. The amount of credit, if any, to be given on this basis is discretionary. There is no formula that must be followed. The appellant argues the stringency in this case was the requirement that the appellant be at all times in the presence of his surety, his wife, N.K.

[58] Counsel at trial did not raise the issue of any Downes credit, and, in the context of the appellant’s circumstances, I do not see compelling evidence of the stringency of bail conditions necessary to impose Downes credit where the sentencing judge has not seen fit to do so. Specifically, the appellant does not work, lives full-time with his wife and provided no evidence of activities he could not participate in caused by the requirement that he be with his wife at all times.

[59] For these reasons, I would dismiss the appeal against the sentence.

DISPOSITION

[60] Accordingly, I would dismiss the appeal from conviction. I would grant leave to appeal the sentence but dismiss the sentence appeal.

Released: July 4, 2022 “G.T.T.”
“L. Sossin J.A.”
“I agree. Gary Trotter J.A.”
“I agree. L. Favreau J.A.”