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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
CITATION: R. v. Guindon, 2022 ONCA 821
DATE: 20221206
DOCKET: C68686
Simmons, Tulloch and Huscroft JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Denis Guindon
Appellant
Joshua A. Clarke, for the appellant
Nicolas de Montigny, for the respondent
Heard: November 1, 2022 by video conference
On appeal from the convictions entered by Justice Michelle O’Bonsawin of the Superior Court of Justice on April 29, 2020, sitting without a jury, with reasons reported at 2020 ONSC 1449.
REASONS FOR DECISION
[1] The appellant was convicted of indecent assault, sexual assault, and buggery. The offences were committed against the complainant, a foster child who lived at the appellant’s parents’ home, between 1974 and 1983.
[2] The appellant submits that the trial judge:
provided insufficient reasons for her credibility assessment of the complainant;
applied uneven scrutiny to the defence’s evidence;
erred in permitting a violation of the appellant’s discovery right;
erred in admitting the apology emails; and
erred in her third party records analysis.
[3] The appeal is dismissed for the reasons that follow.
The reasons were not insufficient
[4] The appellant argues that the trial judge’s reasons were insufficient in several respects. Primarily, the appellant argues that the trial judge failed to closely examine the complainant’s credibility given that he had a motive to fabricate, including a financial motive.
[5] We do not accept this argument. The trial judge conducted a thorough credibility analysis and addressed the inconsistencies in the complainant’s evidence, finding that they were explainable and peripheral in nature. She found, further, that the possibility of receiving financial compensation did not undermine the complainant’s credibility. These findings were open to the trial judge and there is no basis for this court to interfere with them. Nor is there any basis to interfere with any of the trial judge’s other credibility findings, including her finding that the appellant’s evidence should be rejected as incredible and unreliable.
The trial judge did not apply uneven scrutiny to the defence evidence
[6] There is no merit to this ground of appeal. In essence, the appellant invites this court to revisit the trial judge’s credibility findings. That is not our function on appeal. We see no basis to conclude that the trial judge applied different standards to the evidence of the Crown and the defence.
The trial judge did not permit a violation of the accused’s discovery right
[7] The appellant argues that his right to discover the Crown’s case at the preliminary inquiry was prejudiced by the Crown’s disclosure one week before the trial of its intention to call the complainant’s wife, CB, as a witness. The appellant submits that this infringed his rights under s.7 of the Canadian Charter of Rights and Freedoms.
[8] It is not appropriate to raise this issue for the first time on appeal. In any event, we see no merit in the argument. The appellant proffered no authority for the proposition that the Crown could not call CB at trial because she was not called at the preliminary hearing. The appellant was not taken by surprise. CB’s involvement was known to the appellant by means of the Crown’s disclosure. Although the Crown announced its intention to call CB at the opening of the trial, the appellant did not raise any objection until several days later, shortly before the Crown proposed to call CB. Defendants are not entitled to “sit on” objections until the last minute and then claim they are somehow prejudiced because they are not satisfied with whatever remedy can be fashioned at that point.
The trial judge did not err in admitting the emails
[9] The appellant argues that the trial judge erred in admitting emails purportedly sent by the appellant to CB – messages that included partial apologies for what he had done to the complainant – because there was no expert evidence as to authorship and no direct evidence linking the emails to the appellant or his wife, citing this court’s decision in R. v. Aslami, 2021 ONCA 249, 155 O.R. (3d) 401, which was released subsequent to the trial judge’s decision.
[10] We do not agree. The parties read an agreed statement of facts into the record that explained how anonymous email services work and how messages are deleted and rendered irretrievable. Expert evidence would not have permitted a conclusion as to the sender of the messages. However, in this case, apart from tone and non-unique grammar and spelling, there were specific facts that supported authorship. In these circumstances, the trial judge’s finding that the appellant likely authored the messages was open to her on the record, which included evidence that the emails included statements about how the appellant had assisted the complainant and that the complainant lacked the technological skills to be able to send the emails. The complainant’s wife also testified and denied that she authored the emails. The trial judge accepted that evidence as she was entitled to do.
The trial judge did not err in regard to the third party records
[11] The appellant argues that the trial judge erred in concluding that the prospect that the complainant was abused in previous foster homes was irrelevant.
[12] This ground of appeal must be rejected. The appellant had no evidence that any prior inconsistent statements were made by the complainant and the trial judge correctly found that statements that may have been made by the daughter of a prior foster parent alleging the complainant had been abused were irrelevant. The appellant’s third party records application concerning this issue was no more than a fishing expedition. Moreover, whether the complainant suffered abuse in other foster homes was of little probative value and did not outweigh the complainant’s privacy interest in the records.
Conclusion
[13] The appeal is dismissed.
“Janet Simmons J.A.”
“M. Tulloch J.A.”
“Grant Huscroft J.A.”