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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20231006 Docket: COA-22-CR-0363

Hourigan, Thorburn and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

D.M. Appellant

Counsel: Glen Henderson, for the appellant Nicole Rivers, for the respondent

Heard: September 29, 2023

On appeal from the conviction entered on January 10, 2022 and the sentence imposed on December 5, 2022, by Justice Marvin Kurz of the Superior Court of Justice.

Copeland J.A.:

[1] The appellant appeals from conviction and sentence on one count of sexual assault.

[2] After hearing submissions on behalf of the appellant, we did not call on the Crown, and dismissed the appeal with reasons to follow. These are our reasons.

A. The conviction appeal

(i) Factual background

[3] The complainant is the appellant’s niece. She was 16 years old at the time of the offence, and 26 years old when she testified at trial. The offences occurred at the home of the appellant’s daughter, T.H. The complainant, her mother, and her godmother were staying overnight, as they were in town for the wedding of T.H.’s brother (the appellant’s son). The appellant and his wife lived in an apartment in the basement of T.H.’s home.

[4] The evening at issue, there had been 40 or 50 people at the home all day for a party, and 21 people stayed overnight. The adults had been drinking, but the complainant did not consume alcohol that day or evening.

[5] The complainant testified that she went to bed earlier than the adults, on a sofa in the living room of the basement apartment. She testified that she slept on one of the basement sofas because her mother told her to sleep there as they planned to leave early the next morning.

[6] The complainant testified that she was awoken in the night by the noise of a number of the adults coming down to get ready for bed. The adults were setting up air mattresses in the bedroom of the basement apartment. The complainant testified that the adults setting up to sleep in the basement bedroom were her mother, her godmother, the appellant, the appellant’s wife, N.S., and M.S. (the latter two are siblings of the complainant’s mother).

[7] The adults were loud – arguing, talking, and joking while they set up the air mattresses. The complainant was trying to sleep but the noise kept her awake. Five to ten minutes after the adults came downstairs, she heard the adults tell the appellant to get out of the bedroom, because he was arguing or joking with the others. The appellant came out of the bedroom. He was in his underwear.

[8] The appellant repeatedly asked the complainant if she wanted to have a shot of alcohol. She declined, saying she was trying to sleep. The complainant testified that the appellant had been drinking and wanted to continue drinking, asking her if she “wanted to continue the party.” However, she said she could not say what his level of intoxication was.

[9] The appellant lay down on the second sofa and turned on the TV to a movie with sexual content. He asked the complainant if she liked it and if she ever did things like that. She said no and asked the appellant to change the TV channel. He changed the channel. The complainant testified that she felt very uncomfortable.

[10] The complainant told the appellant she just wanted to sleep. He then offered her a shoulder massage to help her sleep. Despite her refusal, the appellant persisted and came up behind her. The trial judge found that the appellant rubbed the complainant’s shoulders and breasts, over her pyjamas, without her consent. The massage lasted 4-5 minutes, and within that time, the breast touching was about 2-4 minutes. The complainant attempted to stop the massage several times. The assault ended when the complainant feigned needing to use the bathroom, and went there and locked the door. She stayed there for some time until the appellant was asleep. The complainant, her mother, and godmother left the home the next morning as planned.

[11] The defence position at trial was that the complainant’s story was entirely made up. The only defence witness was T.H. She testified that she organized sleeping arrangements for everyone that evening. She testified that she had arranged for the complainant to sleep in her daughter’s room, as the two were close in age and got along well, so it would be like a sleepover.

[12] T.H. testified that the plan was for her mother (the appellant’s wife), her aunt M.S., the complainant’s mother and godmother, and her uncle N.S. to sleep in the bedroom of the basement apartment. She had put two air mattresses in the bedroom (in addition to the bed ordinarily there) to accommodate the extra people. She also testified that she planned for her uncle M.C. to sleep on one of the sofas in the basement living room and for the appellant to sleep on the second sofa.

[13] For the sake of clarity, given the use of initials and family relationships to describe people, the differences between the evidence of the complainant and T.H. regarding sleeping arrangements which are relevant to the grounds of appeal are twofold: (i) the complainant’s evidence that she slept on one of the basement sofas because her mother told her to sleep there as they planned to leave early the next morning, whereas T.H. testified that she planned for the complainant to sleep upstairs with her own daughter; and (ii) the complainant’s evidence that M.C. did not sleep on one of the basement sofas and she did not recall his presence at the home that evening, whereas T.H. testified that she planned for M.C. to sleep on one of the sofas in the basement living room.

(ii) The trial judgment

[14] The trial judge found the appellant guilty of sexual assault but declined to find him guilty of sexual exploitation, as he was not convinced beyond a reasonable doubt that the appellant was in a position of trust towards the complainant.

[15] The trial judge found the complainant to be both credible and reliable. He found that her narrative offered a believable amount of detail and stood up to cross-examination. She was careful not to overstate or exaggerate her evidence, and admitted that there were things she could not remember. While the trial judge acknowledged some inconsistencies between the complainant’s trial evidence and evidence at the preliminary hearing, he concluded that these were not significant inconsistencies. He gave detailed reasons why he found them not to be significant.

[16] The trial judge found T.H. to be credible in the sense that she “did not intentionally speak untruthfully to the court”. However, he had concerns about gaps in her evidence and the lack of specificity in key aspects of her evidence such that he found it did not leave him with a reasonable doubt.

(iii) Analysis

[17] The appellant argued that the trial judge misapprehended the defence evidence of T.H. He argued that T.H. testified that the complainant was to sleep upstairs with her daughter, and that the appellant and her uncle M.C. were to sleep on the two sofas in the basement. The appellant argued that T.H. testified that she checked that everybody was in their assigned place before she went to bed. The appellant argued that if T.H.’s evidence was believed or raised a reasonable doubt, he had no opportunity to commit the offence. In light of the trial judge’s finding that T.H. was credible, the appellant argued that this court is entitled to make its own judgement about whether her evidence was, as the trial judge characterized it, “vague”, “ambiguous”, and “not fully responsive to the allegations”. The appellant argued that if this court does not agree with those characterizations, then the trial judge misapprehended the evidence.

[18] The test for misapprehension of evidence sufficient to warrant appellate intervention is stringent. The misapprehension must be of substance rather than detail; it must be material, rather than peripheral, in the reasoning of the trial judge. In addition, it must not merely be part of the narrative of the judgement, but an essential part of the reasoning process resulting in conviction: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

[19] I am not persuaded that the trial judge misapprehended T.H.’s evidence. There are two flaws in the appellant’s argument. First, it seizes on words or phrases in the trial judge’s reasons, without considering them in the context of the reasons as a whole. The reasons as a whole are clear that, although the trial judge found T.H. to be credible in the sense that she was seeking to be truthful, he had concerns about gaps in her evidence and the lack of specificity in her evidence such that he found it did not raise a reasonable doubt. Second, the appellant’s argument proceeds on the erroneous basis that the trial judge was obliged to assess T.H.’s evidence in the manner most favourable to the defence. The trial judge was entitled to consider the weaknesses in T.H.’s evidence and come to the conclusions he did.

[20] The evidence relevant to this ground of appeal is T.H.’s testimony that she had planned for the complainant to sleep upstairs in her daughter’s bedroom and also for the appellant and her uncle M.C. to sleep on the two sofas in the basement living room. The language that T.H. used in describing the sleeping arrangements in examination-in-chief included words such as: that “the plan” was for the complainant to sleep in her daughter’s room; that the appellant and M.C. “were going to take the couches”; that the appellant and M.C. “took couches”. T.H. did not testify that she observed the complainant go to bed in her daughter’s room or prepare to do so. Nor did she say that she observed M.C. go to sleep on one of the sofas in the basement or prepare to do so.

[21] In cross-examination, T.H. agreed that she was not keeping track of where people were sleeping after she had gone to sleep. She agreed that it was possible that the complainant’s mother could have told the complainant that she wanted her to sleep in the basement after T.H. went to bed. In cross-examination, for the first time, she said that before everyone went to bed, she “made sure that everybody had water and whatever they needed”. Again, she did not specifically say that she observed either the complainant in her daughter’s room or M.C. on one of the sofas in the basement. When questioned about the fact that she had not said in examination-in-chief that she checked on everybody before she went to bed, T.H. said she had not been asked.

[22] The trial judge began his analysis of T.H.’s evidence by stating that he accepted that, although she was close to the appellant, she would not lie to protect him. He then stated: “I found her evidence to be credible but not fully responsive to the allegations raised by [the complainant].” He later explained (consistent with the meaning of credibility), that by saying he found T.H. to be credible, he meant that “she did not intentionally speak untruthfully to the court”.

[23] However, the trial judge explained, using examples, that there were gaps in T.H.’s evidence and lack of specificity in key aspects of her evidence. For example, he observed:

As set out below, counsel did not attempt to elicit from [T.H.] whether she had observed whether those arrangements [for the complainant to sleep in her daughter’s room] were carried out. Nor did he ask her whether she saw [the complainant] sleeping or even going to sleep in [her daughter’s] room.

[T.H.] did not testify as to the time she went to sleep. She could not recall. Nor did she state that on the night in question, she saw [the complainant] in bed in [her daughter’s] room or [M.C.] in bed or preparing for bed on one of the two couches in the basement. When speaking of ensuring that everyone was settled, she did not say that she went into the basement.

[24] This type of gap in T.H.’s evidence led the trial judge to conclude that her evidence did not fully respond to the allegations and was vague and ambiguous. With respect to her evidence about M.C. and the plan to have him sleep on one of the basement sofas, the trial judge found that:

• T.H. did not testify that she saw M.C. on the couch in the basement that night;
• She said M.C. and the appellant “took couches” in the basement, but that was ambiguous because it was said in the context of questions about her arrangements for the sleeping quarters of her guests;
• Although T.H. testified that she made sure everyone was settled before going to sleep, she did not say what she did in in that regard. She did not say she went into the basement to check on her parents or other relatives sleeping there.
• He concluded that as a result, T.H.’s evidence did not undermine the aspect of the complainant’s narrative that she slept on one of the basement couches that night.

[25] Similarly, with respect to T.H.’s evidence that she planned for the complainant to sleep in her daughter’s room, the trial judge found that:

• T.H. did not say that she saw the complainant in her daughter’s room at any time during the evening in question or the next morning.
• T.H. admitted that after she last saw the complainant that evening, the complainant could have gone to the basement at the request of her mother.
• He concluded that T.H.’s evidence did not directly contradict the evidence of the complainant that she slept on one of the basement sofas that night.

[26] In reaching these conclusions, the trial judge said that the impact of T.H.’s evidence may have been different had she said that she saw M.C. sleeping on one of the basement sofas that night or preparing to do so, or saw the complainant go to bed in her daughter’s bedroom or prepare to do so. But that was not T.H.’s evidence.

[27] The appellant took issue with the trial judge’s characterization of T.H.’s evidence as “vague”, “ambiguous” and “not fully responsive to the allegations” as not a fair characterization of her evidence in light of his finding that she was credible. In my view, the appellant is pulling those terms from the context of the reasons as a whole. The trial judge clearly explained that the reason he found that T.H.’s evidence did not raise a reasonable doubt, despite finding her to be a truthful witness, was because of gaps in her evidence and a lack of specificity in key aspects of her account.

[28] The appellant argued in his factum that the trial judge erred in law in finding that the photographs of the wedding that T.H. relied on regarding the presence of M.C. at the wedding were not properly authenticated because they were introduced by T.H. (who was also present at the wedding), rather than by the photographer. In oral submissions, the appellant focused more on the submission that the trial judge failed to appreciate the import of T.H.’s evidence that M.C. was at the wedding the next day, an issue about which the complainant was ultimately unsure. The appellant argued that M.C.’s presence at the wedding was circumstantial evidence which could support that he was present at the home the day and evening before, when other family members were present for the party.

[29] I would reject both arguments related to the wedding photos and M.C.’s presence at the wedding.

[30] T.H. testified that she obtained the photographs from a friend of the family’s Facebook page. She said the photos were of her brother’s wedding (i.e., the day after the complainant alleged the offence occurred), and identified various family members in the photos, including M.C.

[31] It is well-established that a person present for an event depicted in photographs may be in a position to authenticate photographs and that, as a result, it is not always necessary to call the photographer as a witness to authenticate photos: R. v. B.S., 2019 ONCA 72; David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 559.

[32] Although one could infer that T.H. was present when the photographs at the wedding were taken, this is not explicit in her evidence. The trial judge raised the issue of authentication at the time the photos were tendered, but trial counsel (not Mr. Henderson) did not elicit evidence from T.H. as clearly as ought to have been done for purposes of authentication.

[33] In any event, assuming, for the sake of argument, that the trial judge erred in his comments in relation to authentication of the photos, it had no impact on his analysis that T.H.’s evidence on this issue did not raise a reasonable doubt.

[34] After the portion of the reasons where the trial judge expressed his concerns about authentication of the wedding photographs, he stated: “Even assuming that [M.C.] was present at the home on the night in question, [T.H.] did not testify that she saw him on the couch in the basement that night.” As explained above, the trial judge found that T.H.’s evidence that M.C. and her father “took couches” in the basement was ambiguous and was in the context of her making arrangements for where her guests would sleep. He further observed that, although T.H. said she checked that everyone was settled before she went to sleep, she did not say she had gone into the basement to check on her parents and relatives sleeping there.

[35] I would also reject the submission that the trial judge failed to appreciate the import of T.H.’s evidence that M.C. was at the wedding the next day. The reasons for judgment make clear that the trial judge understood that the issue of M.C.’s presence at the wedding had relevance to whether M.C. was in the home on the day and evening of the offence. But, as explained above, the trial judge found that, given the gaps and lack of specificity in T.H.’s evidence, it did not raise a reasonable doubt regarding the complainant’s evidence that M.C. was not in the basement at or around the time of the offences.

[36] The findings made by the judge were open to him on the record at trial and do not show a misapprehension of T.H.’s evidence or of its import to the issues in the case.

B. The sentence appeal

[37] The appellant was sentenced to six months imprisonment in a correctional facility, followed by two years probation.

[38] Before the sentencing judge, the Crown sought a sentence of 18-20 months incarceration, followed by probation. The appellant sought a suspended sentence, a “short and sharp” sentence of between 30 days and 90 days intermittent, or a conditional sentence order.

[39] The appellant argued that the trial judge committed an error in principle in concluding that R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, “foreclosed” (the appellant’s word, not the trial judge’s) the possibility of a conditional sentence of imprisonment in cases of sexual assault against children. The appellant further argued that having foreclosed the possibility of a conditional sentence, the trial judge failed to meaningfully consider the circumstances of the offence and the circumstances of the offender in determining whether a conditional sentence was appropriate. The appellant rests the second argument on one sentence by the trial judge where he stated that the circumstances of both the offence and the offender called out for a custodial sentence. The appellant argued that the circumstances of the offender pulled in the direction supporting a conditional sentence.

[40] I am not persuaded that the trial judge erred. The trial judge did not hold that Friesen foreclosed the possibility of a conditional sentence order for a sexual offence involving a child regardless of the circumstances. Indeed, the trial judge recognized that with the November 2022 amendments to the Criminal Code of Canada, R.S.C. 1985, c. C-46, a conditional sentence was an available sentence. He also considered this court’s recent decision in R. v. Ali, 2022 ONCA 736, 164 O.R. (3d) 81, regarding the principle that appropriately crafted conditional sentences can accomplish the sentencing goals of deterrence and denunciation, even for offences involving violence. I do not read the trial judge’s observation that Ali did not involve a sexual assault against a child and “did not mitigate the comments of the Supreme Court in Friesen” as a statement that a conditional sentence is foreclosed – whatever the circumstances of the offence and the offender – in a sexual offence involving a child. Rather, he was simply stating that consideration of the appropriateness of a conditional sentence order in a sexual offence involving a child must be made in light of the principles articulated in Friesen.

[41] In the reasons for sentence, the trial judge gave detailed and specific consideration to factors about the circumstances of the offence that he considered to be aggravating, as well as mitigating circumstances in relation to the appellant. In the latter category the trial judge included the fact that the offence was an isolated and unplanned event, the appellant’s age, health issues, absence of a criminal record, letters of reference, lengthy work history, and his role in supporting his wife, who also has health issues.

[42] Read as a whole, the sentencing reasons are clear that, having considered all of the circumstances of the case, including the aggravating and mitigating circumstances, the trial judge rejected a conditional sentence as inadequate to express denunciation and general deterrence. This conclusion made a conditional sentence unavailable pursuant to s. 742.1(a) of the Criminal Code, because the trial judge was not satisfied, in all the circumstances, that a conditional sentence would be consistent with the fundamental purposes and principles of sentencing. That conclusion was open to the sentencing judge on the record before him.

[43] In the absence of an error in principle, I see no basis to interfere in the sentence imposed.

Disposition

[44] As indicated at the end of the hearing, the conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

Released: October 6, 2023 “C.W.H.” “J. Copeland J.A.” “I agree. C.W. Hourigan J.A.” “I agree. Thorburn J.A.”