COURT OF APPEAL FOR ONTARIO

CITATION: R. v. T.B., 2023 ONCA 194
DATE: 20230322
DOCKET: C66351

Miller, Trotter and Favreau JJ.A.

BETWEEN

His Majesty the King
Respondent

and

T.B.
Appellant

Gregory Lafontaine and Julia Kushnir, for the appellant

Caitlin Sharawy, for the respondent

Heard: February 15, 2023

On appeal from the order of Justice James R. H. Turnbull of the Superior Court of Justice, dated July 20, 2018, with reasons reported at 2018 ONSC 4464

REASONS FOR DECISION

[1] The appellant was found guilty of one count of invitation to sexual touching contrary to s. 152 of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge imposed a conditional sentence of two years less a day plus three years of probation.

[2] The appellant raises a number of grounds of appeal that essentially challenge the trial judge’s credibility findings. The following reasons explain why we dismiss the appeal.

Factual Background

[3] The incident happened roughly 20 years ago, when the victim, who will be referred to as “A”, was about four years old. She has a twin sister, “B”. Both girls were babysat by their grandparents (the appellant’s parents – the appellant is the girls’ uncle).

[4] The appellant was around 31 at the time and living in his parents’ home. He occupied the basement, which he referred to as “[his] place” and “dominion” and described it as being “Fort Knox”. It included a bedroom, bathroom, and sitting room. That is where the offence occurred.

[5] The offence did not come to light until a few years later, when A was about seven years old. A and B were at L.W.’s house, which neighboured their father’s place of business. L.W. looked after the girls sometimes. On the day in question, A and B were colouring at L.W.’s house, when A told L.W. that the appellant “asked [her] to kiss his pee-pee”. She told L.W. that she did not do it. L.W. asked B whether she had a similar experience, and she said no. This disclosure soon led to police involvement.

[6] A gave a video recorded statement to the police. She told the police that when she was in the appellant’s bedroom one day, he dared her to put his “winkie” into her mouth. He was sitting on the bed “bare naked” at the time. The appellant told A that his girlfriend did it all the time. A said that she put her mouth on his penis for a few seconds and then ran upstairs.

[7] A drew a picture of the appellant’s penis for the police and circled where she put her mouth. She described his penis as looking wet – from being in her mouth. She disagreed that she kissed his penis. When the police officer asked her to explain, A demonstrated by putting her fingers into her mouth.

[8] For reasons that are unclear, charges against the appellant were not pursued at that time.

[9] As A continued to mature, she started to realize the sexual nature of the act. Following an anxiety attack at school, and other mental health challenges, she reached out to the police again. At this time, A was 18 years old, and her paternal grandmother (who was present when the girls were being babysat) had just died.

[10] A was 21 years old at trial. She adopted the contents of the original video statement she gave to the police recording as true. It was entered into evidence under s. 715.1 of the Criminal Code. A denied that she waited until her grandmother – a potentially key defence witness – died before pursing the matter again.

[11] B also testified. She saw the appellant naked in the house three or four times when they were being babysat. She explained that there was one occasion where she and A snuck up on the appellant while he was sleeping and touched his genitals. At that age, they thought this conduct was funny and not wrong. A’s recollection of this incident was different: she and her sister were in the appellant’s bed when he was naked, but she did not remember touching his genitals. B also testified that she did not recall any discussion with L.W. about the sexual incident, nor any sexual behaviour directed towards her by the appellant.

[12] The appellant testified and denied the alleged conduct. He testified that he was rarely home and may have seen the twins at the house twice.

[13] The appellant, his father, and his son (who was living in the same house) all explained that the appellant did not have a bed in his basement unit. They testified that the appellant slept on the main floor, in another bed or on a couch. Furthermore, the basement was off-limits and always locked. The appellant’s father said that he and his wife would lock the basement door when the appellant was in the basement, such that he would have to knock on the door to be let back into the house; alternatively, the appellant would leave through a side door and come around to the front of the house. The upshot of this evidence was that neither A nor B would not have been alone with the appellant in the basement.

[14] The defence witnesses also explained that A and B persistently harassed the appellant’s son. They often grabbed his genitals. This apparently led to the termination of the babysitting arrangement.

[15] Furthermore, the appellant and his step-daughter, M.K., testified that, around 2011 or 2012, A had joined them for supper after a pick-up football game. The appellant testified that during this evening, A had a private conversation with him and apologized for having previously made allegations against him and explained that she had been pressured to do it. In her evidence, A denied being at supper; said the conversation never happened, and said that she would never forgive the appellant. M.K. did not hear the conversation between the appellant and A.

[16] The trial judge provided lengthy reasons for judgment in which he thoroughly reviewed the evidence. He accepted A’s evidence that the incident occurred. He rejected the appellant’s denials, and most other aspects of the defence evidence.

Analysis

[17] In his factum, the appellant raises eight grounds of appeal. Seven of them attack credibility findings; the other one asserts that the verdict was unreasonable. In oral submissions, the appellant’s counsel focused on certain factual issues the trial judge failed to resolve, and his overall approach to the evidence.

[18] In terms of the trial judge’s overall approach to the evidence, the appellant argues that the trial judge started with the assumption of the appellant’s guilt. In doing so, he says, the trial judge shifted the burden of proof to the appellant. We do not agree with this submission, and it is not borne out in the trial judge’s thorough reasons for judgment.

[19] The appellant points to the trial judge’s observations at the end of his reasons, where he said: “There was no plausible motivation for A to lie.” However, in this part of his reasons the trial judge was merely recounting the Crown’s submissions on A’s credibility. At no point did the trial judge shift the burden of proof to the appellant. Rather, the trial judge repeatedly reminded himself of the Crown’s burden and the need to look at the evidence as a whole.

[20] Next, we do not accept the appellant’s submission that the verdict was unreasonable. Although the Crown’s case rested largely on A’s video recorded statement, made many years ago, the appellant does not challenge the admissibility of this evidence. The trial judge considered it to be compelling evidence, as do we. The video captures the evidence of a young and reluctant seven-year-old girl, who conveyed her version of events without being prompted by leading questions. Her physical demonstration of how the act occurred was very powerful evidence.

[21] Relying on R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, the appellant submits that the verdict was unreasonable because the verdict was demonstrably incompatible with evidence that was neither contradicted nor rejected by the trial judge. This was the appellant’s main theme during oral argument – that the trial judge erred by not resolving certain factual issues, and then by not considering the evidence relating to these issues in determining whether the Crown had proven its case beyond a reasonable doubt. We do not accept this submission.

[22] For example, the appellant submits that the trial judge did not resolve the discrepancy between A and B in relation to the napping incident when B testified that both girls were on the appellant’s bed and touched his genitals. As indicated above, while A recalled the incident, she did not testify to touching the appellant’s genitals. In evaluating this evidence, it must be kept in mind that the appellant confirmed that this incident happened; he described the incident as “humiliating” and feeling “livid”. In response to questioning by the Crown, the appellant said, “You know what? I’m the victim here. Okay?”

[23] In light of this backdrop, the discrepancy, which was not stark in any event, was unimportant. The value in A and B’s evidence on this point was that it refuted the defence evidence that the girls were never alone with the appellant. B also testified to being in the basement with the appellant.

[24] As for the football and supper incident, during which A allegedly apologized to the appellant, the trial judge was aware of the discrepancies among the witnesses – A, the appellant, and M.K. He noted that M.K. testified to events 10 to 11 years after the fact and, like the appellant, she claimed to remember things with such incredible detail, rendering her version unlikely (and the appellant’s as well). However, the trial judge said, “I have no way of telling who was telling the truth with respect to the issue of the dinner invitation and this incident.”

[25] We acknowledge that the evidence was potentially important – after all, A was alleged to have given a recantation of sorts. It would have been preferable had the trial judge made a finding one way or the other. But this is not always possible. What is important is that the trial judge considered this evidence in the application of the reasonable doubt standard. He specifically said that M.K.’s evidence did not cause him to have a reasonable doubt about A’s core allegations. The trial judge also said that the appellant’s evidence did not raise a reasonable doubt.

[26] The other area of evidence relied upon by the appellant relates to A’s disclosure to L.W. When she first told L.W. about the incident, A said that she did not comply with the appellant’s request. When she spoke to the police, A said that she did put her mouth on the appellant’s penis. The appellant contends that this was a serious inconsistency that the trial judge ignored.

[27] We do not agree. The trial judge was aware of the inconsistency, having mentioned it a couple of times in his reasons. It was a matter that was addressed during submissions. It would have been preferrable had the trial judge dealt with this inconsistency head-on. However, it is clear from his reasons as a whole, that this evidence did not give rise to a reasonable doubt.

[28] The appellant makes other miscellaneous submissions based on the trial judge’s credibility findings. For example, the appellant submits that the trial judge did not adequately explain why he did not accept the defence evidence that there was never a bed downstairs and that the door to the basement was always locked. The trial judge simply disbelieved the defence witnesses on these two points. On the issue of the bed, the trial judge said:

I find it illogical that the defendant would have a basement apartment, purchase furniture for it but not purchase a bed. I disbelieve the evidence he gave that he did not have a bed in that area, especially after he gave evidence that he had purchased humidifiers to deal with any mould problem.

[29] On the issue of the locked basement door, the trial judge found:

I do not believe that the door to the basement was always locked and inaccessible by members of the family. The suggestion that to leave the basement apartment without going outside, he would have to climb the stairs, pound on the door and await someone to come to open it is ridiculous, especially when he had a lock on his apartment door in the basement.

[30] These were findings that were open to the trial judge do make. This evidence was part and parcel of the appellant’s general submission that he was never alone in the house with the girls and, therefore, had no opportunity to commit the offence. The defence evidence as a whole was rejected; it did not raise a reasonable doubt in the trial judge’s mind.

[31] Finally, the appellant submits that the trial judge did not address weaknesses in A’s memory, especially for some of the details about what happened in the bedroom during the incident (i.e., how she was positioned relative to the appellant, and the location of the bed in the basement bedroom). In her evidence, A acknowledged that her memory of certain details had changed. The trial judge accepted that the passage of time could have faded her memory of the surrounding circumstances. This was a perfectly reasonable conclusion.

Disposition

[32] The appeal is dismissed.

“B.W. Miller J.A.”

“Gary Trotter J.A.”

“L. Favreau J.A.”