Publication Restriction 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20231031 Docket: C70097

Judges: Miller, Paciocco and Coroza JJ.A.

Between:

His Majesty the King Respondent

and

K.B. Appellant

Counsel:

Myles Anevich, for the appellant Jacob Millns, for the respondent

Heard: October 24, 2023

On appeal from the conviction entered on June 1, 2021 by Justice Susan G. Himel of the Superior Court of Justice with reasons at 2021 ONSC 3893.

Reasons for Decision

[1] KB was convicted of historical sexual offences committed against EO, who is his daughter LB’s aunt, when EO and LB were left in his care as children many decades ago. [1]

[2] LB testified for the defence. She provided testimony on numerous points that contradicted EO’s evidence. Unless rejected by the trial judge in its entirety, some of the evidence that LB gave would have raised a reasonable doubt about whether KB had the opportunity to commit most of the crimes that EO alleged.

[3] Specifically, in her evidence EO described the sexual contact as occurring two to three times a week for years, what would amount to 1,000 or more incidents committed in various specified circumstances. EO testified that, with the exception of the first assault that allegedly occurred in a laundry room at EO’s parents’ home, the rest of the assaults occurred at KB’s apartment, that he shared with his daughter LB. EO testified that the apartment assaults began with repeated incidents during and after EO being bathed with LB by KB She said that, on occasion, assaults occurred in the living room while the three of them were watching television, and she testified that on many occasions KB assaulted her when she was sharing a bed with LB, or in KB’s room after KB took her from her bed while LB was sleeping. The assaults allegedly committed in KB’s bedroom occurred occasionally while EO and KB were watching television.

[4] In her testimony LB said that she and EO were not bathed together by KB; that the sitting arrangements in the living room EO described as enabling the assaults were not as EO described; that EO rarely slept over at the apartment LB shared with KB; that the sleeping arrangements were not as EO described; and that KB could not watch television in his room since the television unit was fit only for videogames.

[5] LB also denied EO’s claims that LB walked in on one occasion while KB had his hands in EO’s pants; that EO disclosed the sexual abuse to LB when EO was eleven; and that KB often sent LB away on errands to get alone with EO.

[6] In his defence KB relied heavily on the testimony of LB and on the implausibility of the allegations as demonstrating a reasonable doubt.

[7] The trial judge found that the testimony of LB did not leave her in a reasonable doubt. After finding EO to be a credible witness who may have misperceived or misremembered some details from her childhood, including the frequency of the sexual assaults that occurred, she found KB guilty of all charges, beyond a reasonable doubt. She convicted KB of four offences, staying a gross indecency charge conditionally to avoid double jeopardy.

[8] In his appeal, despite revisiting broad-ranging weaknesses in EO’s testimony, KB does not challenge the reasonableness of the verdicts directly. Instead, he argues that: (1) the trial judge misapprehended the evidence by treating contradictions between LB and EO relating to the opportunity to commit the offences as “not [having] anything to do with the allegations themselves”, thereby failing to give proper effect to evidence about material contradictions, and (2) the trial judge’s lengthy reasons are insufficient as she failed to address explicitly central contradictions between EO and LB, most significantly relating to the bathing practices and the errands that LB denied. We are not persuaded that either error occurred.

[9] It is not accurate to state that the trial judge found that the contradictions arising from LB’s testimony did not have anything to do with the allegations themselves. The trial judge prefaced the impugned comment with the qualification, “[g]enerally speaking”. It is true that LB’s testimony contradicted EO’s testimony on many peripheral matters, including: a trip to Newfoundland; the relationship between LB and her father; EO’s relationship with her family; and about the after-the-fact conduct of the parties.

[10] Far from treating LB’s evidence as unrelated to the allegations themselves, the trial judge recognized, specifically that LB had provided “vital” testimony that required the trial judge to decide whether that conflicting evidence left her in a state of reasonable doubt.

[11] We recognize, as KB submitted, that the analysis the trial judge then undertook focused primarily on the contradictions relating to the frequency of sleep overs, the sleeping arrangements, and the availability of a television in KB’s bedroom. However, we reject KB’s suggestion that this shows that the trial judge failed to consider the other important contradictions. The trial judge reminded herself explicitly to test EO’s testimony “in light of all the evidence presented” after recounting KB’s testimony in meaningful detail, including by recounting contradictions that she did not analyse specifically. In our view, the proper inference is that the trial judge focused her analysis primarily on the issues she did, not because she failed to recognize or think about other conflicts between the testimony of EO and LB but because, in her reasons, she was responding to the issues the parties focused on in their submissions.

[12] Finally, in explaining why LB’s testimony did not leave her with a reasonable doubt the trial judge said, “[i]n the case of [LB], I find that she was aligning her evidence with what she thought would be supportive of her father”. Read fairly and in context, this represents a finding by the trial judge that LB’s evidence was not credible generally. The fact that the trial judge took the time to address some of the contradictory facts that LB testified to by explaining why this testimony did not give rise to meaningful contradictions is not a dependable indication that the trial judge accepted LB’s testimony on these matters. Appropriately, judges often reason in the alternative or on an “even if” basis. In any event, even if the trial judge did accept LB’s testimony relating to some or even all of the alleged contradictions that she analysed specifically, it is clear that the trial judge rejected LB’s testimony on other matters. We are persuaded that the trial judge’s explanation that LB’s testimony was tailored to assist her father provides a cogent and sufficient explanation as to why she would not feel the need to address all of the contradictions explicitly.

[13] Therefore, the appropriate conclusion on this record is not that trial judge failed to consider material contradictions, but that she did not need to address all of the material contradictions explicitly because LB’s testimony was not being accepted and therefore did not raise a reasonable doubt. We are not persuaded that the trial judge misapprehended the evidence. The first ground of appeal is denied.

[14] We are not persuaded that the trial judge failed to give sufficient reasons, either. Read in context and as a whole, in light of the live issues at trial, the trial judge’s reasons explain why she arrived at the decision she did, thereby permitting effective appellate review. Her pathway to the decision is unfolded in the previous paragraphs. There is no need to say more on the sufficiency of the reasons. The second ground of appeal is also denied.

[15] The appeal is dismissed.

“B. W. Miller J.A.”

“David M. Paciocco J.A.”

“S. Coroza J.A.”

[1] Although she is LB’s aunt, the complainant EO is only a few years older than LB, and they were raised more like sisters.