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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20221114 Docket: C68872

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

His Majesty the King Respondent

and

R.F. Appellant

Counsel: Howard L. Krongold, for the appellant Vallery Bayly, for the respondent

Heard: October 31, 2022

On appeal from the convictions entered on July 17, 2020, by Justice Graeme Mew of the Superior Court of Justice.

REASONS FOR DECISION

[1] Following a judge alone trial, the appellant was found guilty of two sexual offences involving his niece and acquitted of two sexual offences involving the same niece. The findings of guilt were in relation to what was described as the “couch incident”, the acquittals were in relation to what was called the “pool incident”. The appellant appeals.

[2] The couch incident took place when the complainant was between 7 and 9 years old. The complainant said she was seated on a couch beside the appellant watching a movie. The appellant pushed her onto her back on the couch and had intercourse with her.

[3] The pool incident took place when the complainant was 10 or 11 years old. The appellant was throwing the complainant and a friend in a swimming pool. The complainant testified that, while doing so, the appellant touched her breasts and vagina under her bathing suit. The complainant's mother was on the pool deck for at least part of the time when this incident took place. Both she and the complainant's friend, who was also present in the pool, testified at trial. Neither observed anything untoward.

[4] The complainant disclosed the incidents to police when she was 14 years old. She was just under 17 years old when she testified at trial. The appellant did not testify.

[5] Taking account of two internal inconsistencies in the complainant's evidence concerning what the appellant did during the pool incident and inconsistencies between the complainant's evidence and the evidence of her mother and her friend, the trial judge acquitted the appellant of the charges relating to the pool incident. He said, “It is possible that there was a sexual element to the contact that occurred between the [appellant] and [the complainant] in the swimming pool. But looking at the evidence concerning this incident as a whole … I am not satisfied beyond a reasonable doubt that there was intentional touching for a sexual purpose.”

[6] Concerning the couch incident, the trial judge was satisfied that the complainant's core evidence that the appellant had penetrated her with his penis was both reliable and credible and that asserted inconsistencies or “embellishments” in her evidence were either peripheral or had been explained.

[7] The appellant raises two issues on appeal.

[8] First, the appellant submits that the trial judge erred by instructing himself not to consider all of the evidence when assessing the complainant’s credibility.

[9] The appellant points in particular to paragraph 38 of the trial judge's reasons where he said,

Probable or likely guilt is not enough. Before I can find [the appellant] guilty, I must be sure that he committed the offences he is charged with. I am required to consider all of the evidence relevant to each charge that has been heard at this trial – but only that evidence – and, having done so, be satisfied beyond reasonable doubt that the offence charge has been committed . [Emphasis added.]

[10] Further, the appellant submits that the trial judge’s reasons that follow paragraph 38 appear to treat the complainant's credibility as though it was to be artificially siloed in relation to the different incidents. In particular, the trial judge did not mention the credibility concerns he had identified in relation to the pool incident when making findings concerning the couch incident.

[11] We do not accept this submission. We agree that the trial judge was required to consider the whole of the evidence when assessing the complainant's credibility. However, read fairly we do not read the trial judge's statement at paragraph 38 of his reasons as anything more than a correct self-caution that he was not entitled to use the Crown's evidence across counts as similar fact evidence. Trial judges are presumed to know the law. Although the trial judge’s statement at paragraph 38 could have been clearer, we are not prepared to attribute an erroneous meaning to it when it can be read as a correct statement of the law. The trial judge provided cogent reasons for all of his findings. We are not persuaded he committed the error alleged.

[12] The appellant's second ground of appeal is that the trial judge erred in assessing the complainant's testimony by using the lessened standard of scrutiny appropriate for assessing the evidence of children.

[13] We do not accept this submission. Although the trial judge referred to the principles applicable to assessing the evidence of children, he was aware that the complainant was a teenager both when she testified at trial and when she made her statement to the police. However, he expressed concern that, particularly in relation to the complainant's evidence about the couch incident, she was speaking about events that had occurred, for her, half a lifetime previously and at a time when she was a child. It was in that context that he accepted that inconsistencies in details between her evidence at trial and prior disclosures did not detract from her core allegation that the appellant had penetrated her vagina with his penis. As we read his reasons, the trial judge accepted the complainant’s evidence about her core allegation because he found that evidence compelling. Having regard to that finding, he was not persuaded that inconsistencies between the complainant’s evidence and disclosures as a teenager – or a shifting memory as a teenager – about the peripheral details of a traumatic event that happened when the complainant was a child should detract from the reliability and credibility of her evidence concerning her core allegation. We do not read this conclusion as arising from any flaw in applying principles relating to the assessment of evidence. Rather, it arose from his assessment of the complainant’s evidence concerning her core allegations and his finding that inconsistencies related to peripheral matters.

[14] Based on the foregoing reasons, the appeal is dismissed.

“Janet Simmons J.A.”

“M. Tulloch J.A.”

“Grant Huscroft J.A.”