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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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: 2023-12-20 Docket: C70343

Before: Thorburn, Coroza and Copeland JJ.A.

Between: His Majesty the King, Respondent And: A.G.R., Appellant

Counsel: Mark C. Halfyard, for the appellant Luke Schwalm, for the respondent

Heard: December 15, 2023

On appeal from the conviction entered on December 10, 2021 by Justice Ian Smith of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals from conviction on one count each of sexual interference and sexual exploitation in relation to his daughter S.R. and one count of sexual interference in relation to his step-granddaughter S.R.D.

[2] The acts which formed the basis of the convictions related to S.R. involved the appellant touching her sexually when she was between the ages of 12 and 15 years (she left home at age 15). S.R. was an adult when she testified at trial. The trial judge acquitted the appellant of one count of invitation to sexual touching in relation to S.R. because he was not satisfied beyond a reasonable doubt that the act that formed the basis of that count occurred before S.R. turned 14. The acts which formed the basis for the conviction in relation to S.R.D. involved the appellant touching her sexually when she was between the ages of 8 and 10 years. S.R.D. was 14 years old when she testified at trial. The trial judge acquitted the appellant of a second count of sexual interference in relation to S.R.D. because the allegations overlapped with the count on which he was convicted.

[3] The appellant had also been charged with one count of sexual interference in relation to his granddaughter J.E.R. (who is the daughter of S.R.). The trial judge acquitted the appellant of the count in relation to J.E.R. because he was not persuaded that the Crown had proven it beyond a reasonable doubt.

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

[5] The appellant raised two grounds of appeal, both of which related to the trial judge’s credibility and reliability findings. [1] The appellant did not testify at trial, as was his right. As a result, the trial turned on whether the trial judge was persuaded that the evidence of S.R. and S.R.D. was sufficiently credible and reliable to prove the charges beyond a reasonable doubt. [2]

[6] The appellant argued that the trial judge erred in his assessment of the credibility and reliability of the evidence of S.R. and S.R.D. by improperly discounting inconsistencies in their evidence on the basis that the acts at issue were alleged to have occurred when they were children. The appellant argued that the trial judge misapplied the law in relation to assessing the evidence of child witnesses by proceeding on the basis that, if the core of an allegation remains intact in cross-examination, peripheral inconsistencies are immaterial to assessing the credibility or reliability of a witness.

[7] We disagree. We see no error in the trial judge’s assessment of the credibility and reliability of the evidence of S.R. and S.R.D., and, in particular, no error in his treatment of inconsistencies in the evidence of S.R. and S.R.D.

[8] The appellant accepted, and we agree, that the trial judge correctly stated the law applicable to the assessment of child witnesses and of adult witnesses testifying to events that occurred when they were a child, referring to R. v. B.(G.), [1990] 2 S.C.R. 30 and R. v. W.(R.), [1992] 2 S.C.R. 122.

[9] The trial judge’s reasons reflect that he was alive to the inconsistencies in the evidence of both S.R. and S.R.D. He considered in great detail the inconsistencies relied on by the defence at trial to argue that S.R. and S.R.D.’s evidence was not sufficiently credible or reliable to prove the charges relating to each of them beyond a reasonable doubt. We are not persuaded that the trial judge conducted his assessment of the credibility and reliability of S.R. and S.R.D. on the basis that inconsistencies which are peripheral are immaterial to credibility, if the core of a witness’ allegation remains intact. Rather, he considered the inconsistencies in the evidence of S.R. and S.R.D. that the appellant argued at trial should adversely impact on their credibility and reliability, and explained why, despite the inconsistencies, he found both S.R. and S.R.D. to be credible and reliable witnesses whose evidence fulfilled the Crown’s burden to prove the charges beyond a reasonable doubt.

[10] In relation to the counts involving S.R. only, the appellant argued that the trial judge erred by improperly compartmentalizing his credibility and reliability assessment of S.R.’s evidence. In particular, the appellant argued that the trial judge made findings relating to collusion in his analysis of the count involving J.E.R. (S.R.’s daughter) that were relevant to assessing the credibility and reliability of S.R.’s evidence on the counts relating to her. In oral submissions counsel for the appellant referred to the evidence of collusion as S.R. “effectively puppeteering” her daughters (J.E.R. and her other daughter).

[11] We reject this submission because it does not accord with the findings the trial judge made in considering the count involving J.E.R. The trial judge did not make a finding that S.R. colluded with J.E.R. or attempted to manipulate her evidence. Rather, he found that he could not rule out “inadvertent tainting” of J.E.R.’s account. The trial judge was clearly alive to the difference between intentional tainting (collusion) and inadvertent tainting. He specifically referred to the decision of this court in R. v. C.G., 2021 ONCA 809, 407 C.C.C. (3d) 552, at paras. 30-40, on the distinction between intentional and inadvertent tainting. One of the reasons that the trial judge acquitted the appellant of the J.E.R. count was that he could not rule out the possibility that, in making her allegations, J.E.R. (S.R.’s daughter) was affected by the knowledge of her mother’s allegations and by witnessing a confrontation between the appellant and her mother (S.R.) shortly before J.E.R. made her allegations to police.

[12] But the possibility of inadvertent tainting of J.E.R.’s evidence by her knowing about S.R.’s allegations could have had no impact on either the reliability or the credibility of S.R.’s evidence. It could have no impact on S.R.’s reliability because S.R. came forward to police first. It could have no impact on S.R.’s credibility because, unlike intentional collusion, inadvertent tainting is not done with an intention to affect the evidence of another: C.G., at paras. 30-32.

[13] In sum, we see no error in the trial judge’s assessment of the credibility and reliability of the evidence of S.R. and S.R.D. His credibility findings are entitled to deference on appeal.

[14] The appeal is dismissed.

“Thorburn J.A.”

“S. Coroza J.A.”

“J. Copeland J.A.”

Footnotes

[1] A third ground of appeal in the appellant’s written submissions was abandoned during oral argument.

[2] There were two additional witnesses at trial relevant to the counts involving either S.R. or S.R.D. – the investigating officer and S.R.D.’s stepmother. The latter testified in relation to S.R.D.’s initial disclosure of the sexual touching by the appellant. However, proof of the counts turned on the credibility and reliability of the evidence of S.R. and S.R.D. in respect of each of their allegations.