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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20230525 DOCKET: C68680

Doherty, Gillese and Zarnett JJ.A.

BETWEEN

His Majesty the King Respondent

and

R.C. Appellant

Counsel: Michael Peterson, for the appellant Keith Garrett, for the respondent

Heard and released orally: May 19, 2023

On appeal from the convictions entered by Justice Lynn Robinson of the Ontario Court of Justice on July 31, 2020.

Reasons for Decision

[1] The appellant was charged with sexual assault, touching for a sexual purpose, and invitation to sexual touching.

[2] The complainant was 15 years old at the time of the trial at which she was the only witness. She testified about the offences that she said occurred when she was between four and seven years old, while the appellant was in a relationship with her mother.

[3] The trial judge accepted the complainant’s evidence as credible and reliable and was satisfied beyond a reasonable doubt of the appellant’s guilt on each charge. She entered a conditional stay of the sexual assault conviction and imposed a six-year sentence on the other counts, as well as making ancillary orders.

[4] The appellant appeals his convictions only. [1] Credibility at trial was conceded. The appellant argues that the trial judge improperly assessed the reliability of the complainant’s uncorroborated evidence. We disagree. The trial judge carefully considered, assessed, and resolved the reliability issues raised by the defence. There was no legal requirement for corroboration. Although the trial judge noted a lack of exaggeration in the complainant’s evidence, she did not use that as a makeweight that enhanced its reliability. The trial judge’s finding that the complainant’s evidence was reliable is entitled to deference on appeal.

[5] We also reject the argument that the trial judge erred, or reversed the onus of proof, in the way she dealt with the complainant’s recovered memories.

[6] The complainant gave evidence about what sparked her memory of the incidents and her disclosure to her mother about what happened. A trier of fact must consider reliability concerns with recovered memories even where the complainant believes what she is saying. The trial judge did exactly that. She considered the defence argument of falsely-recovered memories or planted recollections and rejected it on the evidence. She found that the complainant had explained to her satisfaction the manner in which her memory worked and how the disclosure came about to her mother.

[7] The trial judge’s reference to an absence of expert evidence on “recovered memory syndrome” did not shift the burden of proof. The trial judge decided whether the reliability concerns about recovered memories had been resolved on the evidence. In doing so she simply noted what the evidence was and was not.

[8] The appeal is therefore dismissed.

“Doherty J.A.”

“E.E. Gillese J.A.”

“B. Zarnett J.A.”

Footnotes

[1] Counsel confirmed that although the notice of appeal included a request for leave to appeal sentence the request was withdrawn.