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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(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

(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: 20231220 DOCKET: M54574 (COA-23-CR-1012)

Brown J.A. (Motions Judge)

BETWEEN

His Majesty the King Respondent (Responding Party)

and

B.B. Appellant (Applicant)

Counsel: Mark C. Halfyard, for the applicant Michael S. Dunn, for the responding party

Heard: December 15, 2023 by video conference

ENDORSEMENT

OVERVIEW

[1] The applicant, B.B., applies for release pending the determination of the appeal from his July 7, 2023 conviction on one count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46, and two counts of assault contrary to s. 266.

[2] The applicant was found guilty of sexual assault and assault on his step‑daughter, N, while she was a teenager. The applicant was acquitted of charges of sexual assault against another step-daughter, S.

[3] On December 15, 2023, the sentencing judge imposed a global sentence on the applicant of six years and two months incarceration, broken down into six years for his conviction on the sexual assault charge and thirty days for each of the assaults, to be served consecutively.

THE ALLEGATIONS

[4] The applicant moved in with the two complainants and their mother in 1999 when the children were 11 (S) and 14 (N). The applicant and the mother married several years later. At the time of the applicant’s conviction, they continued to live together although both were estranged from the two girls.

[5] As a result of complaints by S and N, the applicant was charged with the offences in early 2021.

[6] At trial, S testified that:

over several years the applicant touched her in a sexual manner when the applicant, mother, and two children lay together in bed at the start of each day; and,
on one occasion the applicant conducted a pelvic examination of her.

The applicant was acquitted of those charges.

[7] N testified that:

over several years the applicant touched her in a sexual manner, including digitally penetrating her vagina, when the applicant, mother, and two children lay together in bed at the start of each day;
when she was about 15 years old the applicant got into her bed several times and touched her breasts, thighs, and vagina;
on a number of occasions the applicant forced her to perform oral sex on him;
the applicant sexually assaulted her with his penis many times at the family home, including penetration;
the applicant forced her to have intercourse with him in a tent at a marathon bike race;
the applicant had two acts of intercourse with her at a cottage owned by a relative of the mother; and,
the applicant had sexual intercourse with her a couple of times a week for about four years.

[8] In respect of the assault charges, N testified that the applicant was physically violent towards her: once he confronted her at the side entrance to the house, picked her up by the neck, pushed her against the wall, and choked her to the point of blackout; on another occasion the applicant slammed her on the top of the hot tub in the basement of the family house and told her that if he could electrocute her without killing himself, he would do it.

THE TRIAL JUDGE’S REASONS

[9] The trial judge reviewed the evidence at length in her reasons. For the purposes of this application, I shall refer only to the parts that seem most relevant to the s. 679 analysis, in particular the grounds of appeal from conviction asserted by the applicant.

[10] After the incident near the hot tub, N spoke with her school’s vice-principal who, in turn, phoned the police. As a result, on September 24, 2002, both N and S were interviewed by a police officer, Constable Everson, who made notes of the interview. Although part of the interview focused on N’s complaint of assault by the applicant at the hot tub, which S said she had witnessed, during the interview the officer asked N and S whether they had experienced other assaultive behaviour by the applicant. As recorded by the trial judge: “They both told [the officer] that their father has never hit them or abused them in any way in the past.” Regarding that evidence from the officer, the trial judge stated:

Those statements are relied on by the defendant as statements made by the complainants that are inconsistent with their in-court evidence. They are admissible for that purpose, and I will consider their impact presently.

[11] The police officer interviewed N again on September 27, 2002. In her recitation of the evidence regarding that interview, the trial judge stated:

N told Constable Everson that there had never been any inappropriate touching between her and the defendant, and that there has never even been any suggestion of that. These statements are also relied on by the defendant as statements made by the complainant that are inconsistent with her in-court evidence.

[12] The trial judge’s reasons recount that N was 14 years old when the applicant joined their household in the fall of 1999. That would suggest N was born in 1985, making her 17 years old when she was interviewed by the police in September 2002. According to the trial judge’s reasons, N testified that she left the family home in the fall of 2004, two years after her interviews with the police.

[13] The trial judge observed that the mother was firmly supportive of the applicant and was estranged from her daughters: “She does not believe the allegations made by her daughters.” The trial judge noted that the mother, in her testimony, stated that:

N had “alluded” to the defendant having sexually assaulted her, and she told N to immediately get her shoes on, that they would get her sister and go over to the hospital, and she would request that N be tested immediately, and from there, they would go to the police station. She described N’s response in a tone I would characterize as mocking. She said that N then said, “Nothing happened. No, no, he's just intimidating me.”

When asked what N said to her when she alluded to the defendant having sexually assaulted her, [the mother] said that N responded that there had been “a touch”. When asked to clarify, N said that he pushed her down.

[14] The trial judge described parts of that evidence by the mother as “nonsense”.

[15] The applicant testified in his defence. He denied sexually assaulting S and N. The trial judge did not believe his denials nor did his denials of sexually touching S and N create a reasonable doubt. The trial judge gave detailed reasons to explain why the applicant was not credible on the issue. The trial judge also held that the mother’s evidence did not cause her to have any reasonable doubt the offences were committed as alleged.

[16] The trial judge accepted as credible and reliable the police officer’s past recollection as recorded in her notes and report.

[17] The trial judge regarded S and N as honest witnesses.

[18] As to the two incidents of assault described by N, the trial judge regarded her evidence as largely corroborated by the applicant’s evidence. Although she found the applicant not guilty of the charged offences of assault causing bodily harm for the side door and hot tub incidents, she found him guilty of assault.

[19] The trial judge regarded as credible and reliable N’s accounts of the incidents of oral sex, intercourse in her bedroom, and intercourse in a tent and at a cottage. She considered the impact of the statements made by N to the police officer as recorded in the officer’s September 2002 notes:

I must consider the impact of the 2002 police report and the fact that both S and N told Constable Everson that the defendant had not abused them in any way, and N’s statement a few days later that the defendant had never touched her inappropriately and that there has never been a suggestion of inappropriate touching.

N did not allege that any of the highly intrusive sexual assaults, such as oral sex and intercourse, occurred prior to September 2002 when these statements were made, and the statements made to Constable Everson do not undermine the credibility and reliability of N’s evidence about those later events.

The police inquiries, from what can be gleaned from the reports, were concerned with the physical assault of N and the family practice of “cuddling” in bed in the mornings. We do not have a verbatim account of the police interviews of N and S, or what exactly they were asked when they made the reported statements. Their denial to the police that any inappropriate touching or abuse occurred does tend to undermine the evidence of both complainants about what happened in the downstairs bed in the mornings. While there may be a perfectly credible explanation for why both girls have said what they said, it was not that they were influenced by their mother because she was not there and was not with them before they spoke to the police on September 24, 2002.

[20] The trial judge held that she was not satisfied beyond a reasonable doubt that the sexual touching S and N alleged took place during the family’s morning bed cuddles in fact occurred. She gave several reasons for her conclusion. One reason was “the statements of the children to the police in 2002 that there had not been even a suggestion of inappropriate touching of them by the defendant”.

[21] The trial judge found the applicant not guilty of the offences charged in respect of the alleged vaginal examination of S. However, she found the applicant guilty of sexual assault of N based on the acts of oral sex and intercourse and guilty of assault based on the “side door” and “hot tub” incidents.

ANALYSIS OF THE CRIMINAL CODE s. 679(3) CRITERIA

[22] An applicant who seeks release pending determination of his appeal from conviction must demonstrate that the appeal is not frivolous, he will surrender into custody in accordance with the terms of the order, and his detention is not necessary in the public interest: Criminal Code, s. 679(3).

A. Not frivolous and surrender into custody: s. 679(3)(a) and (b)

[23] The Crown accepts that the appeal is not frivolous and the applicant will surrender into custody.

B. Public interest: s. 679(3)(c)

[24] The public interest criterion in s. 679(3)(c) of the Criminal Code consists of two components: public safety and public confidence in the administration of justice: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 23. As Arbour J.A. put the matter in R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47‑48, the concerns reflecting the public interest in s. 679(3)(c) of the Criminal Code “relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability.”

[25] The Crown does not oppose the application on the basis that there are public safety concerns.

[26] The issue in dispute on this application is the public confidence in the administration of justice element of the public interest criterion. The applicant submits the reviewability interest outweighs the enforceability interest; the Crown disagrees and contends the applicant has not discharged his burden of satisfying the public interest criterion.

Enforceability interest

[27] Neither the reasons of the sentencing judge nor a summary of her reasons were before me at the hearing of this application, which had been booked for 2:30 p.m. on Friday, December 15. As matters transpired, sentencing submissions were not made until the morning of December 15. The sentencing judge reserved and delivered her reasons at 3:00 p.m. that afternoon. The hearing of this application commenced at 4:00 p.m. Reasons for sentence were delivered orally and counsel did not have a transcription of them. Nor were counsel at the hearing of this application able to provide me with a summary of the sentencing judge’s comments; neither was at the sentencing hearing. I therefore do not have the benefit of the sentencing judge’s views on the seriousness of the offences for which the applicant was convicted: Oland, at para. 38.

[28] However, the sentencing judge imposed a lengthy penitentiary term of 6 years and 2 months. Given that sentence, it is clear the applicant has been convicted of very serious offences.

Reviewability interest

[29] Although counsel’s opinion on the merits identifies two grounds of appeal, the applicant acknowledged that his primary ground of appeal is that the trial judge’s assessment of N’s credibility was based on a material misapprehension of the evidence. Specifically, the applicant submits the trial judge’s analysis proceeded on the basis that the events involving oral sex and intercourse started after N’s September 2002 interview with the police whereas N’s own evidence indicated they started before that interview.

[30] Based on listening to portions of the audio recordings of N’s evidence, counsel deposed:

It was not disputed that [N] left the Applicant’s home at 18 (or 19) years old. Yet, [N] testified that her date of birth was April 22, 1985 (see June 26, 2023 at time-index 2:03), which would have placed her at nearly 17 and half years old when the police report was made on September 23, 2002, certainly after the other sexual contact had started to occur. In this regard, while we do not yet have a transcript of the trial evidence, I have listened to the audio recording of [N’s] evidence. It is clear from her evidence that the more intrusive sexual activity, including oral sex, started when she was 15 or 16 years old (see June 26, 2023 at time-index 2:19 – 2:20). In terms of the intercourse, she indicated that the incidents of intercourse at the cottage happened when she was 16 years old (see June 26, 2023 at time-index 2:33) and that it happened on a “regular basis”, which she described as a “few times a week.” She indicated that the sexual intercourse occurred for about four years (see June 26, 2023 at time-index 2:37); the Applicant was not even living with her until she was 14. In other words, even on the complainant’s evidence the incidents of both the oral sex and sexual intercourse happened before the September 2002 police report.

In my opinion, this is a serious and material misapprehension of the evidence, and it directly impacted the trial judge’s reasoning process. [Emphasis in original.]

[31] The Crown accepts the applicant’s appeal is not frivolous. However, when examining whether the applicant has satisfied the public interest criterion, the court must assess whether the grounds of appeal “clearly surpass” the minimal standard required to meet the very low threshold of the ‘not frivolous’ criterion: Oland, at para. 44.

[32] On the limited record before me, I am not satisfied that the applicant has met his burden of meeting the public interest criterion.

[33] First, the trial judge’s reasons clearly show she was aware that the defence was taking the position that N’s statements to the police during the September 2002 interviews were inconsistent with parts of her evidence at trial: Reasons, transcript, at pp. 19-20.

[34] Second, her reasons disclose that she recognized there was uncertainty in N’s evidence about when the acts of oral sex and intercourse started. In the course of her reasons the trial judge stated:

At p. 16 of the transcript of her reasons:

N testified that the defendant had sexual intercourse with her many times. It happened about a couple of times per week for about four years.

At p. 43:

At pp. 51-52:

It is not entirely clear to me exactly how old N was when these highly intrusive acts began. She testified at one point that she was 16, but other parts of her evidence suggest it may have started earlier. Since these highly intrusive events could have occurred after N’s 2002 statement to the police, which appears to have been focused on what was going on in the parental bed, her denial then that any abuse had occurred does not affect my analysis of the credibility and reliability of her allegations of offences that occurred after her 2002 interaction with the police.

N was an older teenager when the acts of oral sex and intercourse she described occurred. Her memory of these events is not that of an adult who attempts to recall things that happened in early childhood. I have no concern that she’s misremembering any of the details of these very traumatic acts to which she alleges she was subjected.

The uncertainty that exists with respect to the allegations of sexual assaults in the parental bed and the examination of S does not exist with respect to N’s allegations that the defendant forced her to engage in oral sex and intercourse with him. As I have noted, N’s evidence about two of these events in Oshawa was candid, clear and convincing. These are events she would reasonably be expected to remember. [Emphasis added.]

[35] On the limited record before me, I incline to the view that the applicant’s challenge to the trial judge’s credibility assessment of N amounts more to a disagreement with how she dealt with conflicting evidence than with a misapprehension of evidence. I can put it no higher than I incline to such a view because in the absence of the trial transcripts – in particular, the entirety of N’s evidence and counsel’s closing submissions – I lack the ability to conduct an adequate review of N’s evidence: Oland, at para. 45. As well, I cannot get a firm handle on the trial’s dynamics and live issues, especially how the issues concerning N’s credibility were framed and the parties’ respective positions on the issue. In my view, that trial context is necessary in order to examine the general legal plausibility of the grounds of appeal and their legal foundation in the record, as Oland requires: Oland, at para. 44. Without the ability to review the transcripts, I am unable to conclude that the applicant’s grounds of appeal clearly surpass the “not frivolous” criterion.

[36] Transcripts of the three-day trial were not included in the application record, save for the trial judge’s reasons. Counsel’s affidavit states N testified on June 26, 2023. The trial judge gave her reasons on July 7, 2023; the transcript of the reasons was ordered July 19, 2023; and the ordering party was notified of the transcript’s completion on August 4, 2023. However, the application record does not explain why the transcripts for the balance of the trial are not available. The hearing of this application was held some five months after the date of conviction, which strikes me as ample time to secure at least the material parts of the transcripts of evidence from a short trial.

C. Conclusion

[37] Given the record before me, I conclude that the enforceability interest significantly outweighs the reviewability interest.

[38] Consequently, I am not satisfied that the applicant has demonstrated that his detention is not necessary in the public interest.

DISPOSITION

[39] The applicant’s application for bail pending appeal is dismissed, but without prejudice to his ability to bring a further application upon a fuller record.

“David Brown J.A.”

R. v. B.B., 2023 ONCA 855

Case Summary