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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 of Appeal for Ontario

Date: 20230628 Docket: C66764

Before: Harvison Young, Sossin and Copeland JJ.A.

Between:

His Majesty the King Respondent

and

V.K. Appellant

Counsel: Oleksiy Bykov, for the appellant Lilly Gates, for the respondent

Heard: June 22, 2023

On appeal from the conviction entered on December 19, 2017 and from the sentence imposed on February 9, 2018 by Justice Lloyd M. Budzinski of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of one count of sexual assault and one count of assault against the complainant, his ex-wife, and two counts of assault against his daughter. The information listed seven counts.

[2] The heart of the appeal is the argument that the trial judge’s reasons were insufficient to ground the convictions. Relatedly, the appellant submits that the trial judge erred by failing to apply the test from R. v. W.(D.), [1991] 1 S.C.R. 742.

[3] Following the oral hearing we dismissed the appeal with reasons to follow. These are our reasons.

A. Factual Background

[4] In August 2016, the appellant moved to Canada from Ukraine with his 13-year-old daughter to reunite with his wife, who had moved here shortly after their daughter was born. The reunion was not smooth. It was marked by recurring arguments, some of which the trial judge found involved the use of “some degree of physical force” by the appellant. In October 2016, the appellant left to go to Ukraine. When he returned to the apartment the family had been living in some five months later, his wife called the police. The appellant was subsequently charged with several counts of assault against his wife and daughter, and one count of forcible confinement and two counts of sexual assault against his wife, all of which were related to events alleged to have taken place between September and October 2016.

[5] Specifically, the complainant testified that on one occasion, at a park by the Humber River, she and the appellant got into a fight. The appellant was drunk and started beating her and their daughter, who had tried to protect her by getting in between her parents. She also testified that the appellant had pushed their daughter in the face after she had tried to intervene in a different argument. She remembered that her daughter’s nose was bleeding.

[6] The complainant further alleged that on three to four occasions, the appellant had sex with her despite her telling him that she did not want to. She could not recall the specific dates, but she described the time of day, the room in which each incident took place, how the appellant was positioned relative to her, and who was in the apartment. Importantly, she testified that on one occasion, the appellant pushed her into their washroom and forced her to have sex with him while their daughter was in her bedroom.

[7] The daughter’s evidence was consistent with some of the mother’s evidence. She testified that on one occasion, the family went for a walk in a park near the Humber River. While she was standing some distance away from her parents, she saw the appellant punch her mother in the shoulder. She ran towards them, and the appellant punched her as well when she tried to intervene. On a different occasion, her father punched her in the nose went she tried to intervene in another argument, causing her nose to bleed. She also remembered one occasion on which her father told her to go to her room, pushed her mother into the washroom, and closed the door. After they came out of the washroom, she saw her mother cry and go to sleep.

[8] The appellant also testified at trial. His evidence was that he never hit his wife, but that he would “move her aside or … move [his] child aside”. He further testified that he would push his daughter out of the way when she tried to intervene during arguments. He remembered arguing with his wife and raising his voice in a park near the Humber River, and he remembered his wife walking away, but denied hitting either his wife or his daughter. When he was cross-examined on the allegations of sexual assault, the appellant stated that he had “never rape[d] [his] wife” because she was his wife and “it was a mutual consent for 14 years”.

B. Analysis

[9] The appellant argues that the trial judge convicted him without providing any findings and reasons for judgment.

[10] We disagree. The trial judge’s brief reasons do reveal a clear basis for conviction. As recently reiterated by this court in R. v. J.C., 2023 ONCA 101, appellate review of the sufficiency of reasons follows a functional approach and requires the reading of the reasons in the context of the evidence, the submissions of counsel and the live issues at trial: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 55. Intervention is justified where deficiencies in the reasons foreclose meaningful appellate review, but poor articulation of reasons, by itself, does not provide a ground for appellate intervention: R. v. Sheppard, 2002 SCC 26, [2002] 1. S.C.R. 869, at paras. 25-28; J.C. at paras. 4-5.

[11] There is no question that the trial judge’s reasons for conviction were, as the appellant submitted “unorthodox” and “not delivered according to the usual procedure”. In particular, as the appellant argues, there was no clear break between the closing submissions, during which there was very engaged discussion between counsel and the trial judge, and the trial judge’s reasons. That said, we were not directed to any authority in support of the position that this unorthodox approach constituted, in itself, reversible error. We do not accept the argument that the absence of a break between the submissions and the trial judge’s reasons manifest a lack of deliberation. Here, the path to conviction was clear from the record read as a whole, including the closing exchanges with counsel, the trial judge’s findings on credibility, and his conclusions.

[12] Nor do we accept the submission that the trial judge erred in articulating and applying W.(D.). When defence counsel raised W.(D.) in closing submissions, the trial judge stated:

[O]f course, if I believe the accused, he’s entitled to the acquittal. But even if I didn’t believe the accused, totally, if I disregard his evidence in its entirety, then I still have to look at the remaining evidence, which is essentially the Crown evidence here and be satisfied beyond a reasonable doubt, that the remaining evidence satisfies the test of proof beyond a reasonable doubt.

[13] It is clear from this exchange and from his reasons that the trial judge was alive to the test. While his reasons do not cite W.(D.), his treatment of the evidence shows that he understood and applied the relevant principles. He stated that he was satisfied “beyond a reasonable doubt that the Crown [had] made out its case”, explaining that he was convinced of the appellant’s guilt based on a combination of the wife and daughter’s evidence. He also stated that he found the appellant’s evidence to be “uncredible”.

[14] There is no dispute that the central issue at trial was the credibility of the mother and daughter. The trial judge indicated that he would have been reluctant to convict the appellant of the charged offences on the mother’s evidence alone. However, he accepted the daughter’s evidence. He found that while she was not a “neutral person”, she was unbiased in her evidence. For example, she “didn’t go out of her way to describe events, to protect one [parent] or the other”, she “describe[d] events very objectively”, and the trial judge “didn’t see any sort of animosity in her evidence.” He concluded:

The child’s evidence is supportive sufficiently enough to reaffirm the wife’s evidence, which is actually objective too, because at no time, in a sense, put the accused down as someone who shouldn’t associate with her child or is an irresponsible person. I mean, she certainly has her concerns about him and her attitude, but she’s not attacking him in a way that would indicate that she has some outstanding motive or aggressiveness against him. So there’s objectivity there.

[15] By contrast, the trial judge found that the appellant’s evidence “lack[ed] reliability in certain events and timing and lack[ed] the objectivity.” He added that the appellant was “pointing blame at other people” and that his evidence was not balanced. As a result, he rejected the appellant’s evidence as unreliable, but found some of it “reliable enough to support the wife and the child’s evidence”. As a result, the trial judge accepted some but not all of the evidence of the appellant and the complainant.

[16] Ultimately, the trial judge convicted the appellant only of the counts on the information that were supported by both the wife and the daughter’s evidence. To some extent, the sexual assault charge was also supported by the appellant’s own evidence. The trial judge acquitted the appellant on the counts that depended only on the evidence of the wife, explaining that on her evidence alone, he may only have been convinced on a balance of probabilities.

[17] The appellant has not pointed to any error that would permit this court to interfere with the trial judge’s conclusions. As the Supreme Court instructed in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, a trial judge’s credibility findings are entitled to significant deference on appeal. While his reasons were brief, the trial judge’s credibility findings reflect his consideration of the entire record and are grounded in the evidence, including the appellant’s own testimony on certain points.

[18] With respect to count 7, which relates to the assault on the child having caused her a nosebleed, we are satisfied that the trial judge merely misspoke when he first indicated that he would enter an acquittal. It is clear from the transcripts that there was some confusion on the trial judge’s part as to which count related to which allegation. However, when asked to clarify which counts he would enter convictions on, he clearly stated that he would enter convictions on the two counts of assault against the child, which the registrar confirmed were count 6 and 7. We see no basis to interfere.

[19] In the course of oral argument, the appellant advised that the sentence appeal is abandoned.

[20] The appeal is dismissed.

“A. Harvison Young J.A.”

“L. Sossin J.A.”

“J. Copeland J.A.”