Publication Restriction Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2023-02-07 Docket: C69916

Between: His Majesty the King Respondent

And G.H. Appellant

Counsel: Melanie J. Webb and Anders Hoenisch, for the appellant Emily Bala, for the respondent

Heard: January 30, 2023

On appeal from the convictions entered by Justice Patrick Hurley of the Superior Court of Justice on April 7, 2021, and an application for leave to appeal and, if leave is granted, an appeal from the sentence imposed on December 2, 2021, with written reasons released on January 20, 2022.

Reasons for Decision

I

[1] The appellant was tried by a judge alone on an 8-count indictment. B.G. was the complainant on all eight counts. The alleged offences occurred between 2001 and 2007. The first two counts alleged assaults. Counts 3 and 4 alleged sexual assaults. Counts 5, 6 and 7 alleged the appellant touched B.G. with a part of his body for a sexual purpose. Count 8 alleged that the appellant invited B.G. to touch his body for a sexual purpose.

[2] The trial judge acquitted on both assault charges (counts 1 and 2), and on the charge that the appellant invited B.G. to touch him for a sexual purpose (count 8). He found the appellant guilty on the other five counts. The trial judge entered convictions on both sexual assault charges (counts 3 and 4) and, relying on the rule against multiple convictions, stayed the convictions on the charges alleging the appellant touched B.G. for a sexual purpose (counts 5, 6 and 7).

[3] The trial judge sentenced the appellant to five years in the penitentiary and imposed various ancillary orders, including a lifetime order under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”).

[4] The appellant appeals his convictions, seeks leave to appeal his sentence, and if leave is granted appeals the sentence. At the end of oral argument, the court advised the parties that, with the exception of a variation of in the SOIRA order, the appeals were dismissed. These are the reasons for that disposition.

II

[5] B.G. was born in 1993. Between 2001 and 2006, the appellant lived with B.G., her mother and her older brother, G.G. The appellant and B.G.’s mother were married for part of that time. Some time after the appellant and B.G.’s mother separated, he moved to a house not far from where B.G. lived. B.G. went to that house at least twice after the appellant moved there.

[6] One of the two sexual assault charges involved an allegation of inappropriate touching. The other involved an allegation of repeated, highly intrusive sexual abuse over several years.

[7] B.G. testified that the appellant regularly pinched or touched her buttocks when she was between approximately 8 and 12. According to her, these incidents happened in the kitchen, often in front of her mother and brother.

[8] G.G. testified that he saw the appellant grabbing or touching his sister’s buttocks on many occasions. G.G. recalled that his sister was a teenager when the incidents happened and that the incidents occurred mostly in the rec room in the home. He did not recall seeing the appellant touch B.G.’s buttocks when they were in the kitchen.

[9] B.G.’s mother did not give any evidence about seeing the appellant ever touch her daughter’s buttocks.

[10] The trial judge was satisfied, based on B.G.’s evidence as confirmed by G.G.’s testimony, that the appellant repeatedly touched B.G.’s buttocks. The trial judge rejected the defence argument, that even if the touching described by B.G. occurred, that touching, viewed objectively, amounted to no more than inappropriate horseplay and did not rise to the level of a violation of B.G.’s sexual integrity.

[11] The second sexual assault charge involved allegations by B.G. that over several years the appellant repeatedly assaulted her when they were sitting or lying on the couch in the rec room in the basement of the family home. According to B.G., the assaults involved her sitting on or straddling the appellant while she was naked or partially clothed, and the appellant was partially clothed. The appellant rubbed his penis on B.G.’s vagina, touched her vagina with his hand, and performed oral sex on B.G.

[12] G.G. testified that on one occasion when he went downstairs to watch television, he came upon B.G. lying across the appellant’s lap. She was wearing only a bra and panties. G.G. described his sister as lying with her face toward the ceiling. She then turned over so that her face was pointed downward toward the couch. When the appellant saw G.G., he said something like, “you didn’t see nothing”. G.G. did not report this incident to his mother or anyone else. B.G. did not recall the incident described by her brother.

[13] The appellant did not testify. His daughter, S.H., did testify for the defence. She gave evidence about events relevant to count 8, on which the appellant was acquitted. S.H. also testified that she viewed certain Facebook messages that passed between B.G. and B.G.’s mother concerning inappropriate sexual conduct by the appellant and/or B.G.’s biological father. S.H. testified that she saw these messages in 2012. S.H. told her father about the messages very shortly after she saw them. S.H. confronted B.G. about the messages three years later. She took no steps to preserve the messages, or to provide the appellant with the messages when she told him about them in 2012.

III

[14] The trial judge reviewed B.G.’s evidence. He concluded she was credible in the sense that she was not intentionally giving false or misleading evidence. The trial judge was satisfied, however, that various aspects of B.G.’s evidence, particularly inconsistencies among her prior statement to the police, her preliminary inquiry testimony, and her trial testimony, raised concerns about the reliability of her testimony. The trial judge said:

I need to be cautious in relying solely upon the evidence of the complainant.

[15] Later in his reasons, he observed:

I find that this is a case in which I have sufficient concerns about the reliability of her evidence that her testimony, standing alone, would not be enough for me to conclude that all of the charges had been proved beyond a reasonable doubt. But there is confirmatory evidence, which to borrow from Justice Hill, is sufficient to restore my faith in her account on two of the sexual assault charges.

[16] The trial judge ultimately concluded that G.G.’s evidence supported B.G.’s testimony about the two sexual assaults. Her testimony, as buttressed by her brother’s testimony, proved the appellant’s guilt on the sexual assault charges and the related sexual touching counts beyond a reasonable doubt. The trial judge was not, however, satisfied that the Crown met that burden on the other three counts in the indictment. He acquitted on those counts.

IV

[17] Counsel for the appellant alleges various errors in the trial judge’s approach to, and analysis of the evidence. Among other grounds, counsel submits the verdicts are unreasonable, the trial judge failed to provide adequate reasons, and the trial judge engaged in uneven scrutiny of the evidence. These grounds of appeal are the standard fare of appeals challenging convictions entered by judges sitting without a jury in cases in which the verdict turns primarily on the evidence of the complainant. Experience teaches that the arguments advanced by the appellant often slip into an attempt to reargue on appeal the merits of the allegations. With respect to counsel, who made forceful and thorough submissions, that is what happened here.

[18] The appellant’s submissions target three aspects of the trial judge’s reasons:

• The trial judge’s treatment of the evidence of G.G.;
• The trial judge’s treatment of the defence evidence of S.H.; and
• The trial judge’s failure to set down with specificity, the sexual conduct which he concluded supported the finding that the appellant had engaged in long-term, ongoing, highly intrusive sexual assaults against B.G.

The Trial Judge’s Treatment of the Evidence of G.G.

[19] The trial judge accepted G.G.’s evidence that he saw the appellant on various occasions pinch or grab B.G.’s buttocks. The trial judge also accepted the evidence of G.G. that he saw his sister, wearing only a bra and panties, lying on the appellant on the couch in the rec room. The trial judge ultimately used this evidence to confirm or support B.G.’s testimony that she had been repeatedly sexually assaulted by the appellant on the couch in the rec room.

[20] The phrase “confirmatory evidence” does not have a technical meaning. Nor does the phrase suggest a particular level of probative value. Confirmatory evidence is evidence the trier of fact accepts as true which, as a matter of common sense, provides support for the truth of a material part of the evidence of another witness, usually the complainant. Deciding whether evidence is confirmatory of the allegations made by a complainant is part of the broader assessment of the complainant’s credibility and reliability that trial judges must make based on the entirety of the evidence: see R. v. Primmer, 2021 ONCA 564, paras. 31-33, 39.

[21] The trial judge’s analysis of G.G.’s evidence involved two steps. First, he had to determine whether he accepted G.G.’s evidence. Second, and assuming the trial judge accepted G.G.’s evidence, he had to decide whether that evidence supported or confirmed a material part of B.G.’s evidence.

[22] The trial judge made no error in accepting G.G.’s testimony. G.G.’s evidence was brief and, in some respects, vague. However, his evidence describing the appellant’s grabbing of B.G.’s buttocks, and describing what he saw when he walked into the rec room, was not uncertain or equivocal. The essential features of G.G.’s evidence went largely unchallenged on cross-examination.

[23] Counsel for the appellant points to certain differences in the evidence of G.G. and B.G. and submits that those differences undermine the confirmatory value of G.G.’s evidence. There were differences. G.G. described touching of the buttocks as occurring in the rec room in the basement. B.G. said it occurred in the kitchen. G.G. said he saw B.G. lying on the appellant, clad only in her panties and bra on the couch in the rec room. B.G. testified, that while she regularly engaged in sexual conduct with the appellant on the couch, she had no recollection of G.G. coming downstairs while she was sitting on the appellant in her panties and bra.

[24] The differences in the evidence given by the two witnesses was certainly germane to whether G.G.’s evidence should be accepted and, if accepted, whether it should be regarded as confirmatory of B.G.’s evidence. Those differences were not, however, determinative of the confirmatory value of G.G.’s evidence. The trial judge considered these differences. It was for the trial judge to decide their significance to his assessment of the reliability of G.G.’s evidence, and the ability of that evidence to confirm the evidence of B.G.

[25] Having accepted G.G.’s evidence, it was open to the trial judge to conclude that parts of his testimony supported the reliability of the complainant’s evidence describing the sexual assaults. G.G.’s evidence that he saw the appellant grab B.G.’s buttocks many times was directly confirmatory of her evidence that the appellant grabbed her buttocks. Differences in details, like the room in which the assaults occurred, did not necessarily negate the confirmatory value of G.G.’s evidence. It was for the trial judge to assess the significance of those differences.

[26] The appellant further contends that the trial judge wrongly held that G.G.’s evidence about a single incident that he testified he saw was capable of confirming B.G.’s evidence about repeated sexual assaults that occurred over years. Counsel makes two arguments. First, she submits the conduct described by G.G. does not necessarily constitute a sexual assault. Second, and this is counsel’s primary submission, G.G. gave evidence about a single incident, unconnected to any other sexually inappropriate conduct. Counsel argues that G.G.’s evidence describing a single, somewhat ambiguous act cannot logically confirm B.G.’s evidence that she was repeatedly sexually assaulted in various invasive ways over several years.

[27] We do not accept either argument. G.G.’s description of B.G., who was perhaps 12 or 13 years old, lying on the appellant on the couch while wearing only panties and a bra, strongly supported the inference that the appellant was engaged in some kind of sexual activity with B.G. The appellant’s comment to G.G. supported that inference.

[28] Although G.G. saw only one incident, that incident occurred in exactly the same location at which B.G. testified the appellant regularly assaulted her over an extended time period. The positioning of the appellant and B.G., as described by G.G., was also consistent with B.G.’s description of how she and the appellant were positioned during the repeated sexual assaults on the couch. Bearing in mind the non-technical meaning of “confirmatory evidence”, and that confirmatory evidence need not prove the allegation, it was open to the trial judge, having accepted G.G.’s evidence, to conclude it confirmed B.G.’s evidence that she was regularly subjected to sexual assaults while sitting or lying on the couch with the appellant. The trial judge did not err in using G.G.’s evidence as confirmatory of the allegations made by B.G.

The Trial Judge’s Treatment of the Evidence Given by the Defence Witness, S.H.

[29] S.H. was the appellant’s younger daughter. She was almost exactly the same age as B.G. When the appellant was married to B.G.’s mother, S.H. stayed at their home from time-to-time. S.H. and B.G. spent time together before the appellant and B.G.’s mother separated. They saw less of each other after the separation.

[30] S.H. gave evidence relating to the incident giving rise to the invitation to sexual touching charge in count 8. The trial judge acquitted on that count. It is fair to say he accepted S.H.’s evidence as it related to the incident.

[31] S.H.’s testimony did not relate directly to either of the sexual assault charges. In her evidence, S.H. said she became aware that B.G. had told her mother in Facebook messages that she had been molested as a child. S.H. accessed those Facebook messages. According to her evidence, in the messages, B.G. referred to her assailant as “G.” [the appellant’s first name], but also as “dad”. On the evidence, B.G. referred only to her biological father as her “dad”.

[32] S.H. testified she told her father about the messages very soon after she read them. She did not confront B.G. with the messages until years later. When she did, B.G. told S.H. that it was the appellant who assaulted her. In her evidence, B.G. confirmed that she first told her mother about the assaults in the Facebook messages.

[33] S.H.’s evidence did not figure prominently in the trial judge’s analysis on the sexual assault charges. The trial judge did not accept S.H.’s evidence that B.G. had identified her own father as her molester. In the trial judge’s assessment, S.H. would have taken steps to preserve those messages had they, as she claimed, exonerated the appellant and identified B.G.’s biological father as the molester.

[34] We see no error in the trial judge’s treatment of the evidence of S.H. Her failure to take any steps to preserve the messages, or provide them to her father when she told him about them, could reasonably be seen as inconsistent with her assertion as to the contents of those messages. This assessment was one of many the trial judge had to make when weighing the credibility and reliability of S.H.’s evidence.

[35] The appellant argues that because the trial judge did not draw an inference against the credibility of G.G. for not reporting the sexual assaults he testified he saw to his mother, the trial judge must have approached the evidence of S.H., using a more demanding standard when he drew an adverse inference against S.H.’s credibility because she did not take steps to preserve the Facebook messages that could have exonerated her father.

[36] This argument demonstrates the false premise that often underlies the “different standard of review” submission. The trial judge was considering different evidence, given by different witnesses in relation to different matters. The evidence of each witness was subject to its own credibility and reliability considerations. There is no rational connection between the judge’s assessment of G.G.’s evidence in light of his failure to tell his mother about the assaults, and the trial judge’s assessment of S.H.’s evidence, given her failure to take steps to preserve the Facebook messages. The phrase “apples and oranges” comes to mind. The different determinations made by the trial judge say nothing about the standard of scrutiny he applied to the evidence of S.H. and G.G.

The Trial Judge’s Failure to Address with Specificity the Sexual Conduct Supporting the Finding of Long-Term Sexual Abuse

[37] The sexual assault charges as worded in counts 3 and 4 of the indictment did not particularize the nature of the sexual assault alleged in each count. However, the trial proceeded on the basis that one charge alleged the improper grabbing or touching of B.G.’s buttocks, and the other charge referred to the sexual assaults alleged to have occurred on the couch in the rec room in the basement.

[38] In her evidence, B.G. described ongoing sexual abuse, much of which occurred on the couch in the rec room. She also referred to certain specific sexual acts, including one incident of anal intercourse. The trial judge did not accept B.G.’s evidence relating to the alleged anal intercourse, and he also found some of her evidence in respect of other specific sexual conduct unreliable.

[39] In his review of the evidence, the trial judge summarized the various sexual acts described by B.G. in her testimony. He accepted that it was hard for B.G. to recall specific events, given how many times she alleged she had been assaulted. The trial judge also acknowledged that B.G. was attempting to remember events from many years earlier. Ultimately, the trial judge was satisfied, beyond a reasonable doubt, that the appellant engaged in a pattern of sexual abuse involving repeated sexual assaults while the appellant and B.G. were on the couch in the rec room. That finding provided a proper legal basis for a conviction on the more serious sexual assault charge. The trial judge was not obliged to find a specific act occurred at a certain time, in a certain way.

[40] The trial judge’s reasons adequately explain how he came to his verdicts. Based on B.G.’s evidence, as supported by her brother’s testimony, the trial judge was satisfied the appellant engaged in a pattern of sexual abuse with B.G. over a number of years. That abuse involved repeated grabbing of her buttocks, and repeated assaults while the appellant and B.G. were on the couch in the rec room. A reading of the trial judge’s reasons leaves no doubt as to the basis upon which he convicted the appellant.

V

[41] In summary, the trial judge’s reasons demonstrate a careful and critical examination of the evidence, especially the evidence of B.G. The trial judge was entitled to find that the reliability of B.G.’s evidence in respect of the sexual assaults was enhanced by confirmatory evidence given by G.G. The trial judge did not err in his assessment of S.H.’s evidence. The argument that the trial judge’s reasons demonstrate a material difference in the degree of scrutiny he gave the evidence of S.H., as compared to G.G., finds no support in the record. The trial judge assessed the evidence of both witnesses, having regard to the content of their evidence and the credibility or reliability related issues raised by their evidence. Finally, the trial judge was not required to identify specific acts which occurred at a specific time to convict on the more serious sexual assault charge. It was open to the trial judge to approach the allegation as one of ongoing, repeated sexual abuse.

VI

Sentence Appeal

[42] The trial judge imposed a sentence of five years. The appellant submits the jail sentence is harsh and excessive. He also submits the trial judge erroneously indicated in his reasons for sentence that B.G. had testified she performed oral sex on the appellant. B.G. did not give that evidence at trial.

[43] Crown counsel accepts that the trial judge made the factual error identified by counsel for the appellant. Counsel submits, however, the error was not material to the determination of a fit sentence, having regard to the sexual activity that was proved against the appellant and the other aggravating circumstances. We agree.

[44] We also accept the Crown’s submission that the five-year sentence falls within the range of sentence for this kind of offence laid down in R. v. Friesen, 2020 SCC 9, at para. 114. We note the appellant has a prior, albeit dated, conviction for sexually assaulting a 16-year old female.

[45] The Crown concedes, in light of R. v. Ndhlovu, 2022 SCC 38, that the lifetime SOIRA order cannot stand. The appellant and the Crown agree that the order should be varied to an order of 20 years: see R. v. Rule, 2023 ONCA 31.

[46] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed. The SOIRA order is varied from a lifetime order to an order of 20 years.

“Doherty J.A.” “K. van Rensburg J.A.” “L.B. Roberts J.A.”