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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2022-12-14 Docket: C70185

Fairburn A.C.J.O., Doherty and Favreau JJ.A.

Between

His Majesty the King Respondent

and

A.Y. Appellant

Counsel: Andrew Furgiuele and Ioana Dragalin-Reeves, for the appellant Kevin Rawluk, for the respondent

Heard: December 5, 2022

On appeal from the conviction entered on July 6, 2021 by Justice Lucy K. McSweeney of the Superior Court of Justice.

Reasons for Decision

[1] This is an appeal from conviction for sexual assault. The events occurred at the appellant’s karate studio where the complainant was a student. The case turned largely on an assessment of credibility.

[2] The appeal rests on the appellant’s submission that the reasons for judgment are insufficient and that the trial judge misapprehended a few pieces of evidence on a particular point.

[3] There are a few gaps in the transcript of reasons for judgment. Those gaps arise from technological issues experienced when the trial judge was delivering her reasons. The appellant claims that there is an insufficiency of reasons arising from those gaps.

[4] The appellant also contends that the reasons, as transcribed, fail to explain how the trial judge arrived at the verdict. In oral submissions, the appellant argued that this error is related to the trial judge’s misapprehension of the evidence regarding his opportunity to commit the offence.

[5] Specifically, the appellant argues that the trial judge’s reasons fail to explain why she rejected the appellant’s and his wife’s evidence that there was no opportunity for the offences to have been committed because the appellant was never alone with the complainant at the dojo where the classes took place. Indeed, the appellant’s wife testified that she watched every class involving children.

[6] While there are limited gaps in the transcript of the reasons for judgment, incomplete transcripts do not lead to a new trial. The question is whether there exists a “serious possibility” that there was an error in the missing portion of the transcript or that the missing transcript deprives the appellant of a ground of appeal: R. v. Hayes, [1989] 1 S.C.R. 44 (S.C.C.), at para. 10; R. v. Gagnon (2000), 136 O.A.C. 116 (Ont. C.A.), at paras. 80-81; R. v. Dobis (2002), 58 O.R. (3d) 536 (Ont. C.A.), at paras. 19-23; R. v. Mills, 2019 ONCA 940, at para. 79.

[7] The appellant does not suggest that the missing transcript in this case contains an error. Rather, the missing transcript is said to give rise to an insufficiency of reasons such that the trial judge’s path of reasoning cannot be understood, and the reasons are impervious to appellate review.

[8] We find that the reasons as transcribed are sufficient.

[9] Reasons must be read in their entirety. Assessing credibility is “not a science” and can constitute a difficult task for trial judges who are called upon to explain “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. It is a “difficult and delicate matter”, one that does not easily “lend itself to precise and complete verbalization”: R. v. M.(R.E.), 2008 SCC 51, [2008] 1 S.C.R. 3, at para. 49.

[10] The reasons in this case demonstrate that the trial judge understood the substance of the evidence, the Crown’s burden of proof and the need to consider the credibility and reliability of all of the witnesses.

[11] Read in their entirety, the reasons demonstrate that the trial judge considered the evidence from both defence witnesses that the offence “could not ever have happened in the years the dojo was in operation because [the appellant] was never at the dojo alone with a student during the lesson time.” The trial judge understood that evidence; she simply rejected it. Her path of reasoning is clear on the face of the reasons.

[12] The judge accepted the complainant’s evidence following a full review of that evidence. She gave reasons for doing so. As in R.E.M., at paras. 67-68, the trial judge was entitled to accept the complainant’s evidence, and her considered and reasoned acceptance of that evidence offers an explanation for her rejection of the defence evidence. As well, the trial judge provided other reasons for rejecting the defence evidence, including that the appellant’s evidence on a particular point was “implausible”.

[13] As for the appellant’s assertion that the trial judge misapprehended the evidence on the newsletters filed at trial, the newsletters were produced by the appellant’s studio around the time of the assault. While the appellant claimed that the newsletters established that children could not attend a particular type of class, the trial judge was not obligated to accept his evidence around what the newsletters actually established. Since the newsletters do not clearly establish that the class was limited to adults, it was open to the trial judge to infer that the class was also open to children.

[14] The appeal is dismissed.

“Fairburn A.C.J.O.” “Doherty J.A.” “L. Favreau J.A.”