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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20241008 Docket: COA-22-CR-0344

Miller, Trotter and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

E.R. Appellant

Counsel: Mark Halfyard and James Bray, for the appellant Emily Bala, for the respondent

Heard: September 18, 2024

On appeal from the convictions entered on September 12, 2022 by Justice M.J. Lucille Shaw of the Superior Court of Justice, with reasons reported at 2022 ONSC 5163.

Reasons for Decision

Introduction

[1] The appellant appeals from his convictions for one count of sexual exploitation and one count of sexual assault. [1] The appellant was the great-uncle of the complainant. The offences were based on sexual contact, primarily oral sex, between the appellant and the complainant. The contact took place with the apparent consent of the complainant. However, the Crown contended, and the trial judge accepted, that that the complainant could not give legally valid consent. The complainant testified that the sexual contact had occurred beginning when he was 15 years old and ended sometime before his daughter was born, when he was 19 years old. The Crown alleged, and the trial judge accepted, the appellant was in a relationship of trust with the complainant. The appellant did not contest that sexual contact occurred between himself and the complainant. However, he testified that the sexual contact began after the complainant was 18 years old and was consensual.

[2] The central issue at trial was when the sexual contact between the appellant and the complainant occurred and whether the complainant was over or under 18 years old when it occurred. The trial judge was persuaded beyond a reasonable doubt that the sexual contact began when the complainant was 15 years old and that the appellant was in a position of trust towards the complainant. Based on those factual findings, the trial judge was satisfied beyond a reasonable doubt that the offence of sexual exploitation had been proven. She also found that the appellant abused his position of trust to induce the complainant to engage in the sexual contact and that this vitiated the complainant’s consent. [2] On this basis, she was also satisfied that sexual assault was proven beyond a reasonable doubt.

[3] After hearing submissions on behalf of the appellant, we dismissed the appeal without calling on the Crown, with reasons to follow. These are our reasons.

(1) Review of credibility and reliability findings of a trial judge

[4] The grounds of appeal raised by the appellant involve challenges to the trial judge’s credibility and reliability findings. As such, it is important to bear in mind the deference owed to a trial judge’s findings of credibility and reliability. An appellate court must review a trial judge’s reasons as a whole and functionally. Absent a palpable and overriding error or an error of law, an appellate court must not interfere with a trial judge’s credibility and reliability findings. An appellate court “must not finely parse the trial judge’s reasons in a search for error”: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 69, 76-82; R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 82-85.

(2) The trial judge’s reasons

[5] As we must consider the errors alleged by the appellant within the context of the trial judge’s reasons as a whole, it is helpful to begin with an overview of her findings regarding the credibility and reliability of the evidence of the complainant and the appellant.

[6] The central issue in dispute at trial was the complainant’s age when the sexual contact occurred. [3] The complainant pinpointed the start of the sexual contact in relation to when he moved from New Brunswick to Ontario. He moved to Ajax, Ontario in 1994, when he was 15 years old. He testified that the sexual contact with the appellant began shortly after he moved to Ontario. The timing of the complainant’s move to Ontario and his age at the time of the move was corroborated by the evidence of his mother and by the appellant’s daughter, AB. The complainant’s mother testified that she and the complainant moved to Ontario in 1994, when she married a man who lived in Ajax. At that time, the complainant was 15 years old. The complainant’s mother testified that between 1994 and 1997, she would visit the appellant’s home with the complainant three to four times during the summer months and once or twice during the winter. AB was called as a defence witness. She recalled the complainant moving to Ontario with his mother, who she was close to, but thought it was in 1993, rather than 1994. She recalled seeing the complainant at the appellant’s home multiple times between 1994 and 1997.

[7] By contrast, the appellant testified in examination-in-chief that the complainant did not live in Ontario between 1994 and 1997. He initially maintained in cross-examination that he believed “a hundred percent” that the complainant did not move to Ontario until 1997 (when he was 18 years old). However, ultimately the appellant said he did not remember the complainant living in Ontario between 1994 and 1997. He also testified that he had no memory of the complainant being at his home between 1994 and 1997.

[8] The trial judge accepted the evidence of the complainant, corroborated by his mother and AB, about the timing of his move to Ontario and his age at the time of the move. She found that there was “overwhelming evidence” that the complainant lived in Ajax with his mother and her new husband between 1994 and 1997. She found that the complainant “was not shaken on the core of his evidence of the sexual activity with [the appellant] and that it started when he was 15 years old when he moved to Ontario with [his mother].”

[9] By contrast, the trial judge found it difficult to reconcile the appellant’s evidence of having no memory of the complainant being in his home between 1994 and 1997, while purporting to have very clear memories of specific sexual encounters with the complainant between 1997 and 2004. The appellant does not directly challenge the trial judge’s findings in relation to the timing of the complainant’s move to Ontario and his age at the time of the move.

[10] More generally, the trial judge found the evidence of the complainant to be credible and reliable and found the appellant’s evidence not to be. She noted that the complainant clearly was uncomfortable testifying about the sexual activity. He answered questions briefly. In cross-examination, he candidly admitted things that were difficult for him, including that he consented to the sexual activity and initiated it half the time. He did not overstate or exaggerate his evidence. She considered a number of areas where the defence argued there were inconsistencies in the complainant’s evidence or between the complainant’s evidence and other evidence. In some cases she found the evidence did not actually disclose an inconsistency. In other cases, she found that the inconsistency did not give her concerns about the complainant’s overall reliability or credibility.

[11] In addition, the trial judge considered and rejected the defence theory that the complainant lied about when the sexual activity began because he was fearful of being considered gay, finding that neither the evidence of the complainant nor his mother supported this theory. Having rejected this theory of motive to fabricate the timing of the sexual contact, the trial judge correctly recognized that the defence had no onus to prove a motive to fabricate.

[12] As for the appellant, the trial judge noted that he presented his evidence clearly and was not defensive or confrontational. However, she rejected his evidence that the complainant did not live in Ontario until 1997 and that the sexual contact only began after the complainant was 18 years old.

[13] The trial judge gave many reasons for rejecting the appellant’s evidence. As noted above, she found that the evidence was overwhelming that the complainant moved to Ontario in 1994 when he was 15 years old. There was evidence from both his mother and AB that the complainant attended at the appellant’s home multiple times in between 1994 and 1997. She noted that in cross-examination the appellant resiled from his position that the complainant did not live in Ontario between 1994 and 1997. The trial judge found the appellant’s evidence that he did not recall the appellant in his home between 1994 and 1997 not to be credible, given the evidence of the complainant’s mother that she, her husband, and the complainant socialized with the appellant at his home several times per year in that time period, and that the complainant came with her on these visits until he was 18 years old. She also found the appellant’s evidence of this lack of recollection of the complainant in his home between 1994 and 1997 difficult to reconcile with the appellant’s evidence that he had clear memories of specific sexual encounters with the complainant between 1997 and 2004. She found aspects of the appellant’s descriptions of two of the sexual encounters lacked plausibility. She also found that the complainant pulling his shirt down over his genital area prior to the first sexual contact – which both the complainant and the appellant testified to – was more consistent with a vulnerable and confused 15-year-old boy than an 18-year-old who was about to become a father.

(3) Analysis of the appellant’s grounds of appeal

[14] The appellant raises three grounds of appeal. We address each in turn.

[15] First, the appellant argues that the trial judge relied on illogical and ungrounded assumptions in finding that the evidence of the complainant pulling his shirt down over his genital area immediately prior to the first sexual contact was more consistent with the conduct of a 15-year-old boy, embarrassed or feeling insecure due to sexual feelings he did not understand, than with an 18-year-old who was about to become a father (the complainant’s first child was born when he was 19 years old).

[16] Both the complainant and the appellant testified about the complainant pulling his shirt down over his genital area. The complainant said that he was uncomfortable and insecure, but could not explain why he pulled his shirt over his genital area. The appellant testified that he believed the complainant may have been covering an erection.

[17] Where an appellant asserts that in assessing credibility (or reliability) a trial judge erroneously relied on an assumption that is beyond the bounds of common sense and experience, the reviewing court must first consider the reasons as a whole in the context of the record to assess whether the trial judge’s finding is based on the evidence in the record or relies on an assumption. In the context of the reasons as a whole and the record, what at first may appear to be based on an assumption may turn out to be grounded in the evidence: Kruk, at para. 94.

[18] Trial judges are entitled to rely on common sense and experience in assessing evidence. Absent an error of law, reliance on common sense and experience in the process of drawing inferences is reviewable only if it discloses palpable and overriding error. Palpable errors include, for example, assumptions that are obviously untrue on their face or untrue or inapplicable in light of other accepted evidence or findings of fact. If a palpable error is shown, the reviewing court must also consider whether the error is overriding, in the sense that it could have affected the result or goes to the core outcome of the case: Kruk, at paras. 71-75 and 95-98.

[19] We see no error in the portion of the trial judge’s reasons inferring that the complainant pulled his shirt down over his genitals prior to the first sexual contact out of youthful sexual embarrassment and that this act was more consistent with the appellant being 15 years old at the time than an 18-year-old who was about to become a father for the first time. The inference drawn by the trial judge was grounded in the evidence. Further, to the extent it relied on a common-sense inference, the inference was not ungrounded or illogical.

[20] The appellant argues that the complainant’s evidence in cross-examination did not support the proposition that he was pulling his shirt down because he was embarrassed or felt insecure. However, his evidence in examination-in-chief could fairly be understood as saying he was pulling his shirt down out of youthful embarrassment about sexual feelings. In particular, the complainant linked pulling his shirt down to covering his “dick”. Because the trial judge was entitled to accept some, none, or all of the complainant’s evidence, the inference she drew of youthful sexual embarrassment was open to her.

[21] Trial judge also relied on differences in sexual maturity between a 15-year-old boy and an 18-year-old in drawing an inference from the complainant’s behaviour in pulling his shirt over his genital area to his age. We see no palpable error in this aspect of her reasoning. Her common-sense reliance on the differences between a 15-year-old boy and an 18-year-old about to have his first child was not illogical or unfounded in light of sexual changes that accompany puberty.

[22] Second, the appellant argues that the trial judge relied on ungrounded assumptions in finding that the appellant’s evidence about how the first sexual contact was initiated was implausible. The trial judge found implausible the appellant’s evidence that the first sexual contact was initiated by the complainant – who was 33 years younger than the appellant and had had minimal prior contact with the appellant – following the appellant into a shed where the appellant was urinating, and without anything being spoken, the complainant lowering his own pants and starting to masturbate. The trial judge also found it implausible that the appellant, who on his evidence would have been 51 years old when the sexual contact began and, “who had never had sex with a man, would become instantly aroused by his nephew and, rather than leave, also masturbate.”

[23] The appellant argues that the trial judge’s reasoning relied on unfounded assumptions because it failed to consider the diversity of people’s sexual practices. The appellant argues that the trial judge’s failure to account for the diversity of people’s sexual practices risked relying on stereotypes that are “rooted in inequality of treatment”, contrary to the holding in Kruk at para. 96.

[24] Kruk provides no support for the appellant’s argument. The concern in Kruk that trial judges not be permitted to rely on inferences rooted in inequality of treatment is concerned with the type of equality concerns protected by s. 15 of the Charter, such as gender, race, and sexual orientation. The societal taboo on intra-familial sexual contact does not raise this type of equality concern. The trial judge’s reasons in this case do not rely on any type of pernicious bias. There is no suggestion in her reasons, for example, of anti-gay bias. Rather, the focus of what the trial judge found implausible was the appellant’s evidence that the complainant would, without any discussion, enter the shed and begin masturbating in front of the appellant – his much older great-uncle with whom he had had minimal prior contact – and, given the fact of the familial relationship, that the appellant would immediately join in, rather than leave the shed.

[25] It would have been preferable for the trial judge to avoid consideration of the fact that, on the appellant’s account, it would have been his first same-sex sexual experience. However, the focus on this portion of the trial judge’s reasons was on the fact of the familial relationship, the age gap, the minimal prior interaction between the appellant and the complainant, and the appellant’s account that the complainant began masturbating with no prior discussion, rather than the fact that they were both the same sex.

[26] Further, even if there were a palpable error in this portion of the reasons, we would not find it to be overriding. The central issue at trial was when the sexual contact happened (i.e., the complainant’s age at the time it started), not the precise manner in which the sexual encounters occurred. The trial judge based her finding about when the sexual contact occurred on the complainant’s evidence that it began shortly after he moved to Ontario. As noted above, the timing of his move to Ontario, in 1994, and his age at that time, 15 years, was corroborated by both the complainant’s mother and AB.

[27] Third, the appellant argues that the trial judge relied on unfounded assumptions to discount the impact of inconsistencies in the complainant’s evidence, in particular, in his recollection of whether he engaged in anal penetration with the appellant.

[28] We do not agree. In the passages the appellant impugns, the trial judge did no more than accept that it can be difficult for victims of sexual abuse to disclose the abuse. She found that the difficulty of disclosure was apparent in the complainant’s evidence, particularly because the sexual contact involved a family member. And she found that considering the complainant’s evidence as a whole and the evidence about incremental disclosure, she did not find the complainant to be a less credible or reliable witness because he did not initially disclose in his statement to police that one of the sexual contacts between him and the appellant involved the complainant performing anal sex with the appellant.

Disposition

[29] The appeal is dismissed.

“B.W. Miller J.A.”

“Gary Trotter J.A.”

“J. Copeland J.A.”

[1] The sexual exploitation count was stayed at sentencing, pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.

[2] At the time of the offences, the age of consent was 14 years.

[3] Whether the appellant occupied a position of trust in relation to the complainant was also in issue at trial. However, the trial judge’s finding that the appellant occupied a position of trust was not directly challenged on appeal.