Court File and Parties

Court of Appeal for Ontario

Date: 2024-12-23 Docket: COA-23-CR-1118

Judges: MacPherson, Gillese and Roberts JJ.A.

Between: His Majesty the King, Respondent and A.C., Appellant

Counsel: Amanda M. Ross, for the appellant Luke Schwalm, for the respondent

Heard: December 20, 2024

On appeal from the convictions entered by Justice Joseph M. Fragomeni of the Superior Court of Justice, on February 6, 2023.

Reasons for Decision

[1] The appellant was convicted of five counts of sexual interference and five counts of sexual assault against five of his nieces and great-nieces when they were children between the ages of 7 and 16 years and the appellant was between 34 and 57 years of age. The offences as charged occurred between January 1, 1989 and August 5, 2012. He received a custodial sentence of 6 years and 3 months. He appeals his convictions but not his sentence.

[2] A pivotal event occurred in July 2018. One of the complainants’ cousins, B.G., committed suicide. Following her suicide, B.G.’s September 28, 2017 Tumblr post was discovered. In that post, she stated that when she was a child, she had been sexually abused multiple times by a person she described as a “family friend”. She also stated in the post that a cousin told her years later that she had been sexually abused by the same person. Some of the complainants subsequently spoke to each other and then met at one of their houses in Milton where B.G.’s post was shared, and they spoke generally about the sexual abuse they suffered from the appellant. The trial judge found that although they provided a general disclosure that the appellant had molested them, the complainants did not provide each other with specifics or details of the sexual abuse.

[3] The appellant does not challenge the trial judge’s factual findings regarding the offences. The principal thrust of his conviction appeal is that the trial judge erred by admitting the complainants’ evidence as similar fact evidence for use across all counts because he failed to properly consider the effect of collusion among the complainants. Relatedly, he submits that the trial judge erred by making a positive finding that the complainants had no motive to fabricate and by applying a different and harsher level of scrutiny to his evidence while forgiving serious deficiencies in the complainants’ testimony.

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

[5] First, as the appellant concedes, the trial judge adverted to and applied the correct governing principles concerning the admission of similar fact evidence including the possibility that a complainant’s evidence could be tainted by conscious or unconscious collusion. Both issues were raised at trial. The defence theory at trial was that the complainants deliberately colluded and fabricated their evidence to punish the appellant whom they believed was responsible for their cousin’s suicide. In addition to addressing the issue of deliberate collusion, the Crown also argued against the possibility of unconscious collusion or tainting.

[6] The trial judge found that the complainants had not deliberately colluded and fabricated their allegations against the appellant and also found that the complainants’ evidence was not tainted by their having generally discussed their allegations. We do not agree that he misapprehended material evidence. The trial judge’s findings were open to him.

[7] Second, the trial judge was under no obligation to recount the minute details of each complainant’s evidence, nor did he have to address every single inconsistency: R. v. E.M.M., 2021 ONCA 436, at para. 33; R. v. J.M., 2020 ONCA 140, at para. 4. His duty was to deal with material inconsistencies, of which he found none. None of the alleged mistakes attributed to the trial judge played an essential role in his reasoning process. The complainant’s core narrative did not shift nor was it inconsistent on the material points that the trial judge was entitled to accept. The trial judge saw the complainants testify. They were subject to rigorous cross-examination on the minutia of the sexual offences from decades past. The trial judge thoroughly assessed their evidence and found that the core of their evidence that proved the offences beyond a reasonable doubt was unshaken and consistent. He was aware of the material evidence and critical issues to be decided. As a result, we see no error in the trial judge’s finding that the complainants did not have the alleged retaliatory motive to fabricate.

[8] Finally, we see the appellant’s argument of different scrutiny as effectively amounting to a disagreement about the way the trial judge assessed and weighed the evidence before him. He was alert to the inconsistencies and frailties in the complainants’ evidence and was entitled to conclude for the reasons he explained that they did not detract from the core of their evidence that supported the charges beyond a reasonable doubt. The appellant’s suggestion that his evidence was rejected simply because of his blanket denial of the charges is not borne out by the trial judge’s reasons. The trial judge set out in detail the reasons for his rejection of the appellant’s evidence as problematic and incredible.

[9] Accordingly, there is no basis to intervene. The appeal is dismissed.

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”

“L.B. Roberts J.A.”

Publication Ban

[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.