Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220928 Docket: C68689

Judges: Zarnett, Coroza and Favreau JJ.A.

Between:

His Majesty the King Respondent

and

G.C. Appellant

Counsel: Chris Rudnicki, for the appellant Vallery Bayly, for the respondent

Heard: September 23, 2022

On appeal from the conviction entered on February 14, 2020, by Justice Charles T. Hackland of the Superior Court of Justice.

Reasons for Decision

[1] At the conclusion of oral argument, we dismissed the appeal with reasons to follow. These are those reasons.

[2] The appellant was convicted of committing sexual assault against the complainant, his daughter, contrary to s. 271 and having sexual intercourse with her knowing that she was his child contrary to s. 155(2) of the Criminal Code, R.S.C. 1985, c. C-46.

[3] The charges arose out of numerous sexual acts carried out by the appellant on the complainant between 1991 and 1997. During this time period, the complainant was between 15 and 20 years of age.

[4] The complainant arrived in Canada in 1991, shortly before she turned 16. She lived with the appellant, her stepmother, and their three sons in Northern Ontario. The complainant testified that shortly after her arrival the appellant began sexually assaulting her. According to the complainant, the assaults occurred in the family home or in a car.

[5] The Crown called the complainant and her stepmother. The appellant testified and denied committing the sexual assaults.

[6] In his reasons, the trial judge found that the complainant was a “very credible witness”. He noted that her testimony about the allegations was “fulsome” and “subject only to the type of uncertainties one would expect concerning events 25 or more years ago”. He concluded that critical aspects of the complainant’s evidence were supported by corroborating evidence including evidence from her stepmother. In contrast, he rejected the appellant’s evidence because it consisted largely of “blunt denials” and the appellant advanced a dubious position that the opportunity to engage in sexual encounters with his daughter was not possible as described by the complainant.

[7] The trial judge accepted that almost all of the sexual assaults described by the complainant happened. However, he did not accept the evidence of the complainant relating to two specific incidents.

[8] The first incident allegedly occurred in 1997. The complainant’s stepmother and her three children moved out of the household, leaving the complainant alone with the appellant. The complainant testified that on one occasion when the complainant refused to have sex with him, the appellant put a gun to his head and threatened to kill himself. The complainant then agreed to have sex with him. According to the trial judge, there was nothing in the circumstances of the family that would make it likely that the appellant possessed a gun. However, he did accept the complainant’s evidence that her stepmother’s departure from the family home caused the appellant to be agitated and that he pressured the complainant to have sex.

[9] The second alleged incident occurred in the laundry room of the family home. The complainant testified for the first time at trial that the appellant would ask the complainant to perform oral sex and have intercourse with him in the laundry room of their home. The complainant had not told the police about these incidents nor mentioned it during the preliminary inquiry. The trial judge found that the complainant’s recollections about being sexually abused in the laundry room were unreliable. After noting that the complainant had testified to these allegations for the first time at trial, the trial judge found that the complainant “seemed to indicate her recollections in this regard were in the nature of a flashback”. He found that this evidence was unreliable and stated that he would “therefore exclude it from consideration”.

[10] In the end, the trial judge found that the evidence as a whole satisfied him beyond a reasonable doubt that the appellant had sexually assaulted the complainant during the relevant time. Accordingly, he convicted the appellant of both counts on the indictment.

[11] The appellant raises one ground of appeal – that the trial judge erred in his application of the analysis described in R. v. W.(D.), [1991] 1 S.C.R. 742. The appellant argues that because the trial judge rejected some of the evidence of the complainant and excluded it from consideration, the trial judge artificially compartmentalized material components of the Crown’s case and did not consider the impact of these adverse findings on the remainder of the evidence that he did accept.

[12] We do not accept this argument.

[13] In our view, the trial judge did not misapprehend the principles set out in W.(D.). The trial judge recognized that the credibility and reliability of the appellant and complainant were important issues in the case. The trial judge found the complainant to be a “very credible” witness. It was open to him to accept some aspects of the complainant’s evidence and reject other portions of her testimony. The trial judge explained why he found the complainant to be credible and reliable in recounting several incidents of sexual abuse except for the two aspects of her evidence that he determined were unreliable.

[14] In our view, the appellant’s submission is an invitation to parse the reasons of the trial judge, line by line, in search of an error: R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 69; and R. v. Chung, 2020 SCC 8, 386 C.C.C. (3d) 523, at para. 13. We decline that invitation because we are required to read the trial judge’s reasons as a whole, in the context of the evidence, the issues and the arguments at trial, together with an appreciation of the purposes or functions for which they are delivered: Chung, at para. 13.

[15] Keeping these principles in mind, we are satisfied that the trial judge considered the whole of the evidence, including the appellant’s evidence, properly applied the burden of proof, and did not compartmentalize the evidence. He committed no error of law in convicting the appellant of the offences in the indictment.

[16] For these reasons, the appeal was dismissed.

“B. Zarnett J.A.”

“S. Coroza J.A.”

“L. Favreau J.A.”