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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20240109 DOCKET: C70718

van Rensburg, Roberts and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

B.C.M. Appellant

Counsel: David North, for the appellant Baaba Forson, for the respondent

Heard: November 20, 2023

On appeal from the conviction entered by Justice Beth A. Allen of the Superior Court of Justice on January 28, 2022, with reasons reported at 2022 ONSC 660, and from the sentence imposed on June 10, 2022, with reasons reported at 2022 ONSC 3511.

Reasons for Decision

[1] The appellant appeals his convictions for numerous offences against his biological daughter, B.M., including sexual assault causing bodily harm, sexual exploitation, uttering threats, incest, and making and possession of child pornography consisting of sexualized photos secretly taken of B.M. The offences occurred when B.M. was under the age of 18 years of age, starting when she was 15 years old. As a result of the appellant’s sexual assaults, B.M. became pregnant and gave birth to a child. Forensic DNA evidence indicated that the appellant was 4,000 times more likely than a random man from the population to be the father of B.M.’s child. The appellant received a global sentence of twelve years. He has abandoned his sentence appeal.

[2] We are not persuaded that the trial judge made any reversible error.

Did the trial judge engage in an uneven scrutiny of the evidence?

[3] The appellant submits that the trial judge applied an uneven scrutiny to his and the complainant’s evidence, including that she forgave serious inconsistencies in the complainant’s evidence and viewed his evidence through a much harsher lens. In particular, the appellant argues that the trial judge effectively reversed the Crown’s onus of proof and considered the complainant to have “near supernatural objectivity” while using the appellant’s denial of guilt to the detriment of his credibility.

[4] As the appellant acknowledges and as this court has repeatedly indicated, “[uneven scrutiny] is a difficult argument to make successfully” because “[c]redibility findings are the province of the trial judge” and “attract significant appellate deference”: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 2, at para. 23, leave to appeal refused, [2017] S.C.C.A. No. 294. As Watt J.A. explained in Radcliffe, “appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge’s credibility determinations and to re-try the case on an arid, printed record”.

[5] That is the case here.

[6] First, we do not see the trial judge’s positive characterization of the complainant’s credibility as evidence of uneven scrutiny. She was clearly alive to inconsistencies and missing details in the complainant’s account but, quite rightly in our view, dismissed them as insignificant. She explicitly recognized that the complainant’s non-embellishment could not be used as a makeweight to enhance credibility and there is no indication that she used it in that way.

[7] Rather, the trial judge’s discussion of the complainant’s credibility in the paragraphs highlighted by the appellant occurred in the context of her explanation for rejecting the defence challenge to the complainant’s credibility because of allegations of late reporting and inconsistencies or missing details.

[8] There is nothing wrong with a trial judge noting that things that might have diminished credibility are absent; they are explanations for why a witness has not been found to be incredible: R. v. Kiss, 2018 ONCA 184, at para. 53. That is what the trial judge did here.

[9] Further, we do not interpret the trial judge’s assessment of the appellant’s credibility as reversing the Crown’s burden of proof. The appellant points in particular to the trial judge’s statement that “[t]he greatest detriment to [the appellant’s] credibility rests in his capacity to adamantly deny having intercourse with his daughter where science has reliably showed he did.”

[10] The trial judge’s statement does not reverse the burden of proof but explains why she determined that the appellant’s credibility was diminished. This was most notably due to his denial of sexual relations with his daughter in the face of clear, unchallenged scientific evidence that showed he was the father of B.M.’s child. The trial judge did not treat the appellant’s denial as an admission of guilt or use it to find him guilty. Indeed, she firmly acknowledged the appellant’s right to deny guilt and his entitlement to maintain his innocence. The appellant’s continued denial of sexual intercourse with his daughter in the face of uncontroverted scientific evidence to the contrary was a legitimate factor that the trial judge could take into account in assessing his credibility in accordance with the principles of R. v. W.(D.), [1991] 1 S.C.R. 742.

[11] The examples proffered by the appellant do not support his allegations of uneven scrutiny by the trial judge. Her findings were rooted in the evidence, reasonably explained, and open to her on the record.

[12] We see no basis to intervene.

Did the trial judge materially misapprehend the appellant’s evidence?

[13] First, the appellant submits that the trial judge misapprehended his evidence challenging the DNA expert evidence about paternity and that her misapprehension caused her to make adverse credibility findings against him. Without calling any expert evidence, the appellant testified to his unsupported belief that the DNA evidence showed that he was related to the complainant and therefore to her child, as would be the case if other relatives were tested. The DNA expert had expressly addressed this theory of the DNA evidence during her testimony. She explained that her analysis took account of the fact that the appellant and B.M. were genetically related in assessing the probability that the appellant was the father of B.M.’s child. This testimony preceded that of the appellant. In the context of the expert’s evidence and the appellant’s suggestion that he was as likely to be the child’s father as B.M.’s brother or uncle, the trial judge criticized the appellant for attempting to deflect blame from himself and also for endeavouring to implicate his son in his offences.

[14] As Doherty J.A. explained in R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at para. 24, not every misapprehension of evidence is fatal: “The trial judge’s misapprehension of a part of the evidence does not, standing alone, render his [or her] verdicts unreasonable, constitute an error in law, or result in a miscarriage of justice. The impact of that error on the trial judge’s reasoning process and the product of that process must be assessed”. See also: R. v. Abdullahi, 2015 ONCA 549, at para. 6; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.

[15] While the trial judge may have misunderstood the appellant’s evidence on this particular point by suggesting that he was expressly implicating his son rather than generally commenting on the significance of the DNA evidence, this misapprehension did not affect her overall credibility assessment of the appellant. It was the appellant’s unscientific challenge to the DNA expert evidence, rather than his implication of his son in his offences, that principally grounded the trial judge’s general finding that he was trying to deflect blame by proffering an implausible challenge to the clear DNA evidence.

[16] In any event, the trial judge’s assessment of the appellant’s credibility did not materially depend on her misstatement of one minor part of his evidence. It did not play an essential role in her reasoning for the conviction, and the trial judge would have come to the same conclusion without the misapprehension on this point. Her reasons indicate that she rejected the appellant’s evidence for numerous other reasons that were firmly rooted in the evidence. Aside from the appellant’s denial of unchallenged forensic evidence, the trial judge found other instances where the appellant unreasonably attempted to deflect blame from himself and also endeavoured to implicate his children and others in his offences. For example, without putting his allegations to B.M., the appellant testified that his daughter was a perennial liar, constantly truant, lazy, and abused alcohol and marijuana. The appellant testified that his children and others had access to his cellphone, on which the pornographic photos were taken and stored. The defence also argued that B.M. could have taken the sexually explicit photos of herself, notwithstanding that the photos showed she was asleep.

[17] Next, the appellant argues that the trial judge misconstrued his evidence about whether he had the opportunity to sexually assault B.M. when he regularly slept in the same bed, or to take sexually explicit photos of his daughter while she slept.

[18] The trial judge did not materially misconstrue his evidence. As she indicated in her reasons, the appellant refused to directly answer Crown counsel’s questions and admit the obvious, namely, that he had the opportunity to commit these offences, notwithstanding that Crown counsel and the trial judge clarified that they knew he denied the offences. Instead, the appellant repeatedly insisted that he did not commit the offences rather than answer Crown counsel’s clear-cut questions about whether he had the opportunity to do so. The trial judge found that the appellant was trying to deflect blame, first, for the sexual assaults and interference of B.M. by downplaying how often he slept with B.M., and second, for the photos taken on his phone by blaming B.M., his son and others who sometimes had access to his phone.

[19] The appellant’s eventual agreement with Crown counsel that he had the opportunity to take the photos followed a long exchange where he refused to directly answer the question, and he never agreed that he had the opportunity to sexually assault B.M. As a result, it was open to the trial judge to conclude, as she did, that the appellant’s credibility was diminished for, among other reasons, unreasonably avoiding answering straightforward questions.

[20] As a result, we reject this ground of appeal.

Is there a reasonable apprehension of bias?

[21] The appellant contends that the trial judge’s use of language in her reasons to describe the appellant and his actions was overly severe and displaces the presumption of judicial impartiality and meets the very high threshold of a reasonable apprehension of bias against him. In support of his submissions, the appellant points to the trial judge’s highly critical descriptions of his testimony, such as: “[t]he best he could do”, “outlandishly denied”, “shocking lies”, “descended to the loathsome depth of incriminating [his son]”, and “as futile as it is absurdly self serving”; and of his actions, for example: “wanton viewing pleasure” and “[d]espicable is an understatement”. In particular, the appellant highlights the following passage that appears at the end of the trial judge’s conclusion on the sexual offences:

[The appellant’s] take no prisoners, scorched-earth defence strategy etches a stunning picture of depravity and heartlessness. What I see is a father with callous disregard for the wellbeing and plight of his daughter and his baby and a profound indifference towards his young son. By any measure [the appellant] has transcended the bounds of human decency. He will live on in ignominy for his deeds.

[22] The appellant submits that the trial judge’s use of language was intemperate and unnecessary to her analysis, and that her apparent disgust with the appellant and his actions is so palpable in her written reasons that it must have seeped into her analysis and caused her to lose objectivity.

[23] We start our analysis of this ground with a review of the governing principles. The test for bias is well established: “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude”, as to whether “it is more likely than not that [the trial judge], whether consciously or unconsciously, would not decide fairly”: Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting, but not on this point). There is a high threshold and a heavy burden on the party who seeks to rebut the strong presumption of judicial impartiality: R. v. R.D.S., [1997] 3 S.C.R. 484, at para. 32, per L’Heureux-Dubé and McLachlin JJ, at para. 113, per Cory J.; R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at paras. 84-85, citing R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18. In assessing the question of bias, the trial judge’s actions and reasons must be viewed as a whole and in the context of the entire proceeding: R.D.S., at para. 141, per Cory J.

[24] Trial judges have the discretion and independence to write their decisions as they see fit. To the extent that their use of language is unrestrained, they risk courting allegations of bias. Judicial restraint is necessary to uphold public confidence in the impartiality of the judiciary. While trial judges are human and are not expected to remain as immovable as a statue, as this court noted in R. v. P.G., 2017 ONCA 351, 138 O.R. (3d) 343, at para. 50, “ [a] trial judge's duty is to try the case impartially – without favour or prejudice. His personal feelings about the appellant were irrelevant and ought not to have played any role in his decision.”

[25] The trial judge’s use of strong language was unnecessary for her determination of the issues before her and detracted from what was otherwise an excellent analysis. That said, to the extent that the trial judge’s comments may be seen to be overly strong, they do not suggest a reasonable apprehension of bias. When her comments are seen in their proper context, they do not demonstrate a closed mind against the appellant. See: R. v. McCullough, at para. 17, leave to appeal refused, [1999] S.C.C.A. No. 37.

[26] The trial judge’s reasons must be considered as a whole and in the context of the entire trial. Each case turns on its own facts. The circumstances of this case are different from the situation in P.G., on which the appellant relies. P.G. involved allegations that the minor complainant was repeatedly sexually assaulted by her mother’s boyfriend. Unlike the present case, the trial judge’s intemperate use of language permeated the trial proceedings and seeped into his reasons. The outcome of the trial turned on the trial judge’s credibility assessments of the witnesses, since, unlike here, there was no physical evidence like DNA or cellphone evidence. His credibility assessments of the complainant’s mother and her boyfriend contained very little analysis but were largely filled with sarcastic invective and denigrating comments. For example, as this court noted at para. 47 of its reasons, in assessing the evidence and demeanour of the accused, who was from Australia, the trial judge “ viewed his crying [when he testified] as being nothing more than crocodile tears. They have large crocodiles in Australia”. This court found that the trial judge clearly engaged in uneven scrutiny of the Crown and defence evidence as he rejected all of the accused’s evidence effectively because of minor inconsistencies. A new trial was ordered.

[27] Here, the appellant limits his critique of the trial judge’s submissions to a few isolated passages in the trial judge’s detailed reasons. He does not allege, nor does the trial transcript indicate, that there is any suggestion of bias towards or unfair treatment of the appellant throughout the proceedings. Indeed, the trial judge allowed the appellant’s s. 276 application under the Criminal Code to admit evidence of the complainant’s other sexual conduct and worked with the parties on the areas of questioning to be allowed. Moreover, for the reasons earlier indicated, there is no basis to conclude that the trial judge engaged in an unfair or uneven scrutiny of the evidence. Her reasons demonstrate a thorough, even-handed consideration of the evidence and a correct application of the relevant legal principles. In particular, she analyzed separately the effect of the DNA paternity evidence and fairly recognized that the finding of guilt on a singular incident of sexual assault did not prove the commission of the other offences. As a result, she carried out a detailed, independent assessment of the evidence related to each of the other charges. The trial judge’s analysis and conclusions were unaffected by her expressed repugnance for the appellant’s offences.

[28] For these reasons, we reject the appellant’s contention that the trial judge’s analysis and conclusions were tainted by a reasonable apprehension of bias. The appellant received a fair trial.

Disposition

[29] Accordingly, we dismiss the appeals from conviction and sentence.

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”

“L. Favreau J.A.”