Court of Appeal for Ontario

Date: 2024-12-19 Docket: COA-23-CR-0152

Judges: MacPherson, Gillese and Roberts JJ.A.

Between: His Majesty the King Respondent

And D.W. Appellant

Counsel: Howard L. Krongold, for the appellant Avene Derwa, for the respondent

Heard: December 18, 2024

On appeal from the convictions entered by Justice Kevin B. Phillips of the Superior Court of Justice on November 18, 2022.

Reasons for Decision

Overview

[1] Following a judge-alone trial, the appellant was convicted of sexual assault and sexual interference for having sexually abused the complainant, his biological daughter, when she was between seven and nine years of age. He was sentenced to four years in prison. The appellant initially appealed against both conviction and sentence but has since abandoned his sentence appeal.

[2] On appeal against conviction, the appellant submits that the trial judge erred by improperly relying on (1) the complainant’s lack of embellishment to enhance her credibility and (2) a Children’s Aid Society record from 2015 (the “2015 CAS Record”) to rebut the allegation of recent fabrication.

[3] At the conclusion of the appellant’s oral argument on appeal, the court found it unnecessary to call on the Crown to respond.

[4] For the reasons that follow, we reject both submissions and dismiss the appeal.

The Background

[5] The complainant’s parents separated when she was four years old. After the separation, the complainant and her brother would spend weekends with the appellant at his home.

[6] At trial, the complainant testified that when she was between the ages of seven and nine, the appellant would take her upstairs in his home and give her lessons on how to pleasure herself, as well as how to pleasure a man. Following the appellant’s instructions, the complainant touched her genitalia with her hand, both over and under her clothing. The appellant brushed his hand over her nipple area and otherwise touched and examined her body to assess the progress of her pubertal development. Again following his directions, the complainant touched the appellant’s penis and, at least once, it was put in her mouth.

[7] The complainant disclosed the abuse in January 2017 after the appellant did not attend an unrelated sentencing hearing where the complainant was giving a victim impact statement. The appellant did not attend apparently because of a dispute over where he would sit in the courtroom. Text messages between the appellant and complainant disclose a breakdown in their relationship around that time.

[8] The appellant testified and denied the allegations. The defence theory at trial was that the complainant had fabricated the allegations following the breakdown in her relationship with her father.

The Trial Decision

[9] The trial judge rejected the appellant’s evidence. He found him to be dishonest, argumentative, evasive, and overall incredible. He further found that the appellant’s explanations on key points made no sense and that his testimony was internally inconsistent, changing when he was shown competing evidence.

[10] The trial judge found the complainant to be credible and reliable. He observed that she agreed when her memory failed her and readily admitted when she was unsure or wrong. She resisted opportunities “to make things worse” for the appellant, describing how most of the touching happened over her clothing and resisting any suggestion of penetration. He also noted that the complainant was unshaken on cross-examination.

[11] The trial judge found that any inconsistencies in the complainant’s testimony, considered in light of her age at the time of the incidents, were peripheral – for example, whether the assaults took place in the appellant’s bathroom or in his bedroom adjacent to the bathroom is unimportant when considered in context.

[12] The trial judge recognized that the complainant’s disclosure was revealed incrementally over time and occurred after her relationship with her father was “fatally compromised” by his non-attendance at the sentencing hearing. Nevertheless, the trial judge was satisfied that the manner of the disclosure could be explained by the fact the appellant’s conduct confused the complainant and she otherwise loved her father and yearned for a proper father-daughter relationship with him.

[13] Because the complainant came forward after the appellant upset her by not going to court to support her as he had promised, the trial judge stated that he had to be concerned about the prospect of recent fabrication motivated by animus.

[14] The Crown sought to admit the 2015 CAS Record into evidence. On its face, it showed the complainant had disclosed to her family doctor that when she was between the ages of six and nine, her father asked if she had pubic hair growing and made many comments regarding her developing body, which made her uncomfortable. The family doctor contacted the CAS to advise she was concerned about possible sexual abuse of the complainant.

[15] Defence counsel did not question the authenticity of the 2015 CAS Record but expressed concern about hearsay and the use to which the document could be put.

[16] The trial judge admitted the 2015 CAS Record into evidence. He found that the 2015 CAS Record negatived the allegation of recent fabrication. He stated that the record: was hearsay and presumptively inadmissible; was not used to corroborate or otherwise buttress the complainant’s evidence; and was admitted not for the truth of its contents but for the fact that the statements were made. He described the statements in the 2015 CAS Report as concerning “sexual impropriety that is broadly or generally similar” and found it rebutted any risk of recent fabrication.

[17] The trial judge went on to find that, in any event, on the totality of the circumstances, recent fabrication “is simply not what has happened”.

Issue 1: Lack of Embellishment

[18] The appellant submits the trial judge erred by treating the lack of embellishment in the complainant’s testimony as an affirmative indicator that she was telling the truth.

[19] We do not accept this submission.

[20] At para. 5 of the R v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, the Supreme Court held that while the lack of embellishment cannot be used to bolster a complainant’s credibility, it (1) may be relevant in assessing credibility and (2) can be considered as a factor in assessing whether the complainant had a motive to lie. This court expressed a similar view at para. 53 of R. v. Kiss, 2018 ONCA 184, saying:

[T]here is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination.

[21] When the trial judge’s reasons are read in context and as a whole, it is clear he used the complainant’s lack of embellishment appropriately. While relevant to his assessment of the complainant’s credibility, he did not use it as a makeweight in favour of it. Further, the trial judge’s reference to a lack of embellishment was a factor he considered in assessing whether the complainant had a motive to lie, as the appellant had alleged. As noted above, this is permissible: Gerrard, at para. 5.

Issue 2: The 2015 CAS Record

[22] The appellant submits that the 2015 CAS Record was not properly admitted and the trial judge erred in relying on it to rebut the allegation of recent fabrication.

[23] We reject this submission.

[24] Authentication of the 2015 CAS Record was not disputed at trial. The CAS produced its records pursuant to a subpoena. They were brought to court by CAS counsel and provided to the complainant’s counsel. Thereafter, they were produced to the appellant with the consent of the Crown and the complainant. There was no issue that the 2015 CAS Record was what it appeared to be on its face – a report prepared by a CAS worker. All parties and the judge operated under the shared understanding that the document was what it purported to be. Indeed, defence counsel cross-examined the complainant based on the information in the 2015 CAS Record. There was evidence that the document was what it purported to be, which is sufficient to meet the modest threshold for authentication: R. v. C.B., 2019 ONCA 38, at para. 68.

[25] Further, we see no error in the trial judge’s use of the complainant’s prior consistent statement contained in the 2015 CAS Record. Prior consistent statements are admissible to rebut an allegation of recent fabrication: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. And, as the trial judge explicitly stated, he did not rely on the 2015 CAS Record for the truth of its contents but, rather, for the fact the statements were made.

Disposition

[26] Accordingly, the appeal against conviction is dismissed and the appeal against sentence is dismissed as abandoned.

"J.C. MacPherson J.A."

"E.E. Gillese J.A."

"L.B. Roberts J.A."

Note on Publication Bans

[1] This appeal is subject to publication bans pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C‑46, and s. 110 of the Youth Criminal Justice Act, S.C. 2022, c. 1.