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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20240321 DOCKET: COA-23-CR-0035

Gillese, Coroza and Sossin JJ.A.

BETWEEN

His Majesty the King Respondent

and

J.A. Appellant

Counsel: Anil K. Kapoor and Simon Kim, for the appellant Eunwoo Lee, for the respondent

Heard: March 19, 2024

On appeal from the conviction entered by Justice Janet Leiper of the Superior Court of Justice on October 20, 2022.

REASONS FOR DECISION

[1] The appellant was found guilty of sexual assault and sexual interference following a judge alone trial. The appellant was sentenced to 3.5 years imprisonment, together with various ancillary orders.

[2] At the hearing, we dismissed the appeal, with reasons to follow. These are our reasons.

BACKGROUND

[3] The appellant met the complainant, S.M., in 2001 when S.M. was 12 years old. S.M. was living with his parents in a house with a garage. The appellant, who was 40 at the time, was planning to produce an amateur film.

[4] The appellant testified to writing a script and sharing it with a woman online, who told him she had connections with a Hollywood production company and could forward them the film. The appellant hired S.M. to be the lead in the film, telling S.M. that he could have a future in acting.

[5] One afternoon, S.M. was in his garage when he saw the appellant riding a bicycle back and forth in front of the home. S.M. invited the appellant to come into the garage. The appellant told S.M. that he had to do something to progress in the film and to seal the deal. The appellant then pulled down S.M.’s pants and had anal intercourse with him twice, in quick succession. When it was over, he told S.M. not to tell anyone.

[6] At some point after the assault, a costume fitting took place at S.M.’s home. S.M.’s mother, L.M., was present. Both S.M. and L.M. testified that the appellant spent more time than necessary touching S.M. and fussing over the clothing. They were inconsistent on whether S.M.’s father was present.

[7] S.M. first disclosed what happened to him in 2011, after he was charged with an unrelated offence. He disclosed that he had been abused as a child without naming his abuser. His lawyer argued this was a mitigating factor in later submissions. S.M. later told his mother and his girlfriend. In 2019, after he was charged again, he disclosed it to a counselor but said he was not ready to go to police. As a result of these disclosures, the appellant was charged.

DECISION BELOW

[8] Three witnesses testified at trial: S.M., his mother (L.M.), and the appellant.

[9] The trial judge found that while there was evidence supporting the appellant having a natural interest in film production, the fact that the project had no hope of being successful in combination with the appellant, a well-spoken, intelligent, educated adult, telling a young boy that his dreams of acting were coming true, led her to conclude that this was a manipulative and predatory scenario.

[10] The trial judge rejected the appellant’s evidence, concluding,

I find that [the appellant]’s evidence was not credible nor did his evidence raise a reasonable doubt as to his guilt. The entire picture of the online suggestion that this script would make its way to Hollywood and this amateur production would somehow lead the way forward for SM to become an actor, who he knew had dreams in that direction, is not credible, plausible, or logical . [Emphasis added.]

[11] The trial judge addressed inconsistencies between L.M.’s and S.M.’s evidence, specifically, the number of times they met with the appellant, the number of times the appellant picked up S.M. from the home, and L.M.’s testimony surrounding the costume fitting incident. The trial judge found that these were not significant inconsistencies and were explained by the length of time that had passed. Furthermore, they were consistent on the key factual point: that the appellant displayed an unnatural interest in S.M. and it made them uncomfortable. The appellant’s attraction to S.M. was confirmed by L.M.’s testimony that she also saw the appellant riding a bicycle near the home.

[12] Ultimately, the trial judge found that the appellant was not credible or reliable and accepted S.M.’s evidence about the elements of the offence. She stated:

I accept the evidence of SM on the essential elements of the offence. His evidence and memory were consistent. He was not challenged on a single element of detail on the place of the assault, the way it happened, how it felt, the link to his participation in the film, the car, the use of the rag, and the need for secrecy. SM answered questions directly even though it painted his own behaviour in an entirely unflattering light.

[13] The trial judge found that S.M.’s criminal record did not detract from his credibility. He did not try to minimize or excuse his record and he pled guilty to all of the offences. The trial judge also dismissed the appellant’s allegations of a motive to fabricate. While the timing of S.M.’s disclosures of the abuse could support an inference that S.M. made up the allegations to obtain a lesser sentence, the trial judge ultimately rejected that this was an elaborate fabrication. S.M.’s guilty pleas taking responsibility for his charges, his evidence in court, his history of disclosure and the timing were more consistent with a motive to uncover, confront and understand his own conduct that victimized others.

ISSUES ON APPEAL

[14] The appellant raises the following issues on appeal:

1. Did the trial judge err in her treatment of the appellant’s evidence by: a. Relying on improper reasoning to reject the appellant’s honestly held belief as implausible? b. Denying the appellant due process by failing to afford him the opportunity to respond to her concerns about his evidence? c. Placing a burden on the appellant to call confirmatory evidence to dissuade her of what she found inherently implausible?

2. Did the trial judge err in her treatment of S.M.’s evidence by: a. Relying on irrelevant factors in her assessment of S.M.’s criminal record? b. Relying on improper reasoning in her search for confirmatory evidence? c. Drawing adverse inferences from how the appellant’s counsel conducted his cross-examination of S.M.?

ANALYSIS

(1) The trial judge did not err in her treatment of the appellant’s evidence

[15] In our view, the trial judge properly considered the appellant’s evidence. It was open to the trial judge to find that the appellant’s discussions with S.M. were manipulative and predatory.

[16] The appellant argues that he had an honestly held belief that the film would be sent to Hollywood and argues that this was not implausible nor challenged by the Crown. The appellant further argues that the trial judge’s conclusion that the appellant’s account was not “credible, plausible or logical” could only be reached by considering the evidence of the appellant through the lens of the truth of S.M.’s account of his encounters with the appellant, which was impermissible.

[17] We reject this submission.

[18] As the respondent points out, the appellant admitted to having no experience writing scripts, casting, producing, directing or filming a movie. He testified that he had already submitted the script to a studio but never heard back and had invested less than $500 in the film. The Crown’s theory was therefore that the film was a ruse used by the appellant to lure S.M., and this was supported by the record. It was not an error for the trial judge to accept this evidence and the inference it supported.

[19] The appellant further claims that the trial judge relied on impermissible stereotypes about how an educated person would act, in rejecting this belief.

[20] In this case, the trial judge’s finding was not based on a stereotype about how a person would act, but rather on the evidence in the case and the common-sense inferences resulting from that evidence. The argument that trial judges are not permitted to rely on common sense assumptions was considered and rejected in R. v. Kruk, 2024 SCC 7, and in oral submissions, the appellant shifted away from this ground of appeal.

[21] The appellant was also given a chance to respond to the allegation that the film was a predatory ruse. This was the Crown’s theory of the case and while the Crown did not explicitly ask the appellant to respond to this proposition, trial counsel was clearly aware of the allegation, and could have adduced further testimony on the subject from the appellant. Instead, trial counsel addressed this issue in the closing statement.

(2) The trial judge did not err in her treatment of S.M.’s evidence

[22] In our view, the trial judge did not err in her treatment of S.M.’s evidence. She approached S.M.’s evidence with caution but ultimately found him to be “a clear, credible and reliable witness.”

[23] It was open to the trial judge to find that S.M.’s criminal record had little or no importance in the circumstances of the case. The trial judge considered his criminal record, but noted found that this was but “one piece of evidence to consider” and that it did not detract from his credibility with respect to what occurred to S.M. in 2001.

[24] We also disagree that the trial judge made errors in the confirmatory evidence she relied on in accepting S.M.’s account of the assault. Rather, as the respondent contends, the core confirmatory evidence was the finding that S.M.’s behaviour at the costume fitting showed an interest in or attraction to S.M. This was highly relevant to the core allegation of sexual assault. Again, here, we reject the appellant’s argument that the trial judge’s findings on the costume fitting revealing the appellant’s sexual attraction towards S.M. could only be reached by first accepting S.M.’s version of the assault.

[25] In short, the trial judge’s conviction of the appellant depended on her credibility findings. These findings are entitled to deference. As the Supreme Court recently affirmed in Kruk, at para. 83:

Trial judges have expertise in assessing and weighing the facts, and their decisions reflect a familiarity that only comes with having sat through the entire case. The reasons for the deference accorded to a trial judge’s factual and credibility findings include: (1) limiting the cost, number, and length of appeals; (2) promoting the autonomy and integrity of trial proceedings; and (3) recognizing the expertise and advantageous position of the trial judge. In light of the practical difficulty of explaining the constellation of impressions that inform them, it is well-established that “particular deference” should be accorded to credibility findings. Appellate courts are comparatively ill-suited to credibility and reliability assessment, being restricted to reviewing written transcripts of testimony and often focussing narrowly, even telescopically, on particular issues as opposed to seeing the case and the evidence as a whole. [Citations omitted.]

[26] The appellant has failed to establish that the trial judge’s credibility findings were tainted by any error.

DISPOSITION

[27] For these reasons, the appeal is dismissed.

“E.E. Gillese J.A.”

“S. Coroza J.A.”

“L. Sossin J.A.”