Court of Appeal for Ontario

Date: 2024-12-17 Docket: COA-23-CR-0108

Before: MacPherson, Gillese and Roberts JJ.A.

Between: His Majesty the King, Respondent and D.S., Appellant

Counsel: Laura Metcalfe, for the appellant Katherine Beaudoin, for the respondent

Heard: December 16, 2024

On appeal from the conviction entered on December 6, 2021, by Justice Timothy E. Breen of the Ontario Court of Justice.

Reasons for Decision

[1] At the conclusion of a four day trial, Breen J. of the Ontario Court of Justice convicted the appellant of two counts of sexual assault and two counts of sexual interference. The complainant, T.S., was the appellant’s niece.

[2] The counts on which the appellant was convicted related to the appellant touching the complainant’s breasts, vagina and buttocks when the complainant was between the ages of 4 and 21 and one act of simulated intercourse when the complainant was 11 years old.

[3] During the complainant’s youth, she and the appellant were close. She considered him a “cool gay uncle” who drove her and her friends around, bought them cigarettes, and allowed them to drink alcohol underage around him. The complainant liked to associate with him, including at the bowling alley.

[4] The appellant and the complainant had regular contact and shared activities for about 17 years until the complainant was 21 years old. The last time she was together with the appellant was in 2007. In 2007, the appellant moved to New Brunswick.

[5] In 2019, after learning that the appellant had been convicted of child molestation and had returned to Ontario, the complainant contacted police and reported the appellant’s alleged sexual abuse of her.

[6] The trial judge found the appellant guilty of four charges and acquitted him of four other charges.

Trial Judge's Findings

[7] The trial judge said this about the complainant:

T.S. impressed me as intelligent and thoughtful. The arc of her narrative is coherent and logical. Throughout her childhood and adolescence [the appellant] provided her with the kindness and attention she was missing at home. Her trust and affection allowed [the appellant] to sexualize their relationship, without resistance from her, to the point that it was normalized and accepted.

[8] The trial judge said this about the appellant:

I do not find [the appellant] to be a credible witness. He initially resisted but later conceded that he had an interest in seeing T.S. While he maintained that his work schedule would not permit him to take her out on weekends, he allowed that he did take her out for drives on a dozen occasions.

Grounds of Appeal

[9] The appellant advances four grounds of appeal.

First Ground: Similar Fact Evidence

[10] First, the appellant contends that the trial judge erred in relying on similar fact evidence to prove counts 3 to 6 in the information, to find the complainant’s evidence credible and reliable, and to reject his evidence. In particular, the appellant challenges this passage in the trial judge’s reasons:

[The appellant] could not plausibly explain his motivation in taking T.S. from her home, other than to give her some freedom. The excursions consisted of driving up and down Yonge Street. Such an outing does not impress me as affording a child/adolescent an entertaining diversion. It does however isolate the child in the relative privacy of his vehicle where she would be vulnerable to abuse. In re-examination, when asked to expand upon an equivocal response concerning the alleged touching of T.S. when she was four years of age, [the appellant] asserted “I would never touch her like that, I would never think of stuff like that.” This is clearly not the case, [the appellant] admitted very similar conduct in connection with his conviction for sexual interference. [Emphasis added].

[11] We do not accept this submission. In our view, the trial judge’s similar fact analysis was entirely consistent with the analytical framework set out in the leading similar fact evidence case, R. v. Handy, 2002 SCC 56. In particular, we can find no fault in this crucial component of the trial judge’s analysis:

In the present case the discreditable conduct is tendered to prove the actus reus of the offences charged. [The appellant’s] admitted molestation of a child in 2010 is highly probative of a specific disposition, a sexual interest in children, and is independent of T.S. The admitted conduct is contextually similar, involving the over the clothing touching of the genitals of a child in a familial setting. The gap in time between the alleged childhood molestation of T.S. and the admitted misconduct in New Brunswick does not diminish the probative value of the evidence as it reveals a sexual preference and situation specific misconduct.

[12] Nor do we agree with the appellant’s related submission that the complainant’s knowledge of the appellant’s admitted molestation of another child in 2010 tainted her allegations against him. The trial judge, correctly in our view, rejected this suggestion, finding that the complainant’s “general knowledge” of the appellant’s previous conviction “does not undermine the probative value of [the appellant’s] admitted misconduct in relation to the child molestation alleged by T.S.” As he was entitled to do, the trial judge accepted the credibility and the reliability of the complainant’s core evidence concerning the allegations supporting the charges against the appellant.

Second Ground: Credibility Assessment

[13] Second, the appellant asserts that the trial judge erred in assessing the complainant’s credibility by misapprehending her evidence in a material way. On this issue he points to the trial judge’s treatment of the complainant’s evidence about whether she was clothed during one incident of alleged simulated sex and her description of where the appellant touched her after they attended a cousin’s funeral.

[14] The hurdle for the appellant on this issue is very high. As explained by Martin J. in R. v. Kruk, 2024 SCC 7, at para. 82:

Credibility and reliability findings typically do not engage errors of law, as at their core they relate to the extent to which a judge has relied upon a particular factor and how closely that factor is tied to the evidence. Although such findings may be overturned on correctness if errors of law are disclosed, in most cases it is preferable to review them using the nuanced and holistic standard of palpable and overriding error — which defers to the conclusions of trial judges who have had direct exposure to the witnesses themselves.

[15] In our view, the appellant cannot even come close to clearing this hurdle. The trial judge’s treatment of the complainant’s testimony was comprehensive and balanced. The conclusions he reached about her testimony, including on the two incidents set out above, were open to him.

Third Ground: Rejecting Appellant's Evidence

[16] Third, the appellant submits that the trial judge erred in rejecting the appellant’s evidence through misapprehensions and illogical reasoning.

[17] The appellant submits that the trial judge misapprehended his evidence about what time he would return T.S. to her parents after they went driving together. He challenges this passage in the trial judge’s reasons:

[The appellant] maintained that T.S. was a teenager when he first began taking her out. He agreed that her friends accompanied her on occasion. Yet he maintained that she was always returned home before 8:00 p.m. While appropriate for a small child, an 8:00 p.m. curfew for a young teenager, in the company of her peers, is nonsensical.

[18] The appellant submits that it was not open to the trial judge to reject the appellant’s evidence without any evidence about whether the complainant had a curfew.

[19] We do not accept this submission. The appellant testified unequivocally that he returned the complainant to her home before 8:00 p.m. on every occasion he took her for a drive, regardless of whether it was a day or evening drive or whether the drive was with her alone or with friends. In this context, the trial judge’s use of the word “curfew” is not troubling.

Fourth Ground: Unreasonable Convictions

[20] Fourth, the appellant contends that the trial judge’s convictions on four of the eight charged offences were unreasonable.

[21] The appellant concedes that this argument is tied to his argument on the first issue. He admits that if his first ground of appeal fails, there is no basis for finding the trial judge’s decision unreasonable. Accordingly, in light of our disposition on the first ground of appeal, this ground of appeal must also fail.

Conclusion

[22] The appeal is dismissed.

J.C. MacPherson J.A. E.E. Gillese J.A. L.B. Roberts J.A.

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C‑46.