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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(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

(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.

WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court of Appeal for Ontario

Date: 2024-02-06 Docket: COA-22-CR-0407

Judges: Tulloch C.J.O., Nordheimer and Gomery JJ.A.

Between:

His Majesty the King Respondent

and

P.B. Appellant

Counsel: Jeff Marshman, for the appellant Akshay Aurora, for the respondent

Heard: January 30, 2024

On appeal from the conviction entered on July 5, 2022 by Justice George L. Orsini of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant P.B. appeals his conviction of two counts of sexual assault and two counts of sexual interference. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide those reasons.

[2] The events took place in the 1990s when the appellant was a youth and the complainants were children. Y.S. is the appellant’s half-sister. The other two complainants, K.B. and C.M., were the appellant’s cousins. After C.M. testified, at the Crown’s invitation, the court dismissed the charges based on her allegations. The appellant was found guilty of the remaining charges based on an incident described by Y.S. and two of four incidents described by K.B.

[3] The appellant raised three grounds of appeal, only two of which were pursued at the appeal hearing. He contends that:

The trial judge failed to address and resolve material contradictions between Crown witnesses; and
The trial judge impermissibly found that Y.S. and K.B. were credible in part because neither of them attempted to embellish or exaggerate their evidence.

Ground 1: Contradictions in the evidence of K.B., Y.S., and N.S.

[4] The trial judge accepted K.B.’s evidence about a sexual assault when she was eight or nine years old. This was the fourth assault she described. K.B. testified that she was sleeping over at the house where the appellant lived with Y.S. and their mother, N.S. When she got up in the middle of the night to use the bathroom, the appellant called her into his bedroom. K.B. went in and saw that the appellant was watching television. He asked her to sit on the bed, then to lay back because she was blocking his view. K.B. testified that the appellant then removed her underwear and began assaulting her. She described the assault, her state of mind as it happened, and its aftermath in detail. She recalled that when she woke up alone later in the appellant’s bedroom, the television was still on.

[5] The appellant contends that the trial judge failed to address why he found K.B.’s account of this incident reliable even though both Y.S. and N.S. testified that the appellant did not have a television in his room at the time of the alleged assault. The defence contends that the television was an essential part of her narrative and that addressing this inconsistency in the evidence was particularly important because K.B. stated on several occasions that she thought she might have dreamt about this incident.

[6] In reviewing the evidence, the judge began by directing himself on the legal principles informing his assessment of the evidence. This included the guidance in R. v. A.M., 2014 ONCA 769, at para. 11, with respect to the assessment of the testimony of adult witnesses who were children at the time of the events described. He correctly noted that, although he was to assess the complainants’ credibility according to the criteria applicable to adult witnesses, “inconsistencies, especially on peripheral matters, should be considered in the context of their ages at the time of the alleged events”.

[7] The trial judge canvassed K.B.’s evidence at length. He explained why he accepted her evidence as fundamentally reliable and credible. He accepted that she had been sexually assaulted on the four occasions she described but had reasonable doubt that she clearly remembered that P.B. was the assailant in the first two incidents. He had no such doubt regarding the third and fourth incident. The judge specifically considered K.B.’s statement to the police that, when she woke up after the fourth incident, she thought she was dreaming, and she went to the bathroom “to make sure I wasn’t dreaming it”. The judge noted that, at trial, K.B. consistently denied that the assault was a dream. He accepted the Crown’s argument that, when K.B. referred to “dreaming” in her police statements, she was alluding to the surreal nature of the event. Finally, he dealt with K.B.’s admission that she spoke to the other two complainants about the events giving rise to the charges and explained why he did not find that the evidence about these conversations did not give rise to reasonable doubt.

[8] As this court stated in R. v. A.M., at para. 13, inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects.

[9] We are not convinced that the trial judge’s failure to address the inconsistent evidence about the television in the appellant’s room amounts to a reversible error in this case. At trial, the defence argued that none of the Crown’s witnesses was credible or reliable. She contended that K.B. fabricated the allegations against the appellant or imagined that they happened. Although defence counsel argued, subsidiarily, that K.B.’s recollection of the television in the appellant’s room was contradicted by Y.S. and N.S., she also invited him to reject N.S. and Y.S.’s evidence in their entirety.

[10] A trial judge “is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel”: R. v. A.M., at para. 14. The trial judge’s reasons focused on the defence’s submissions that K.B. may have dreamt up the sexual assault and that she and the other complainants colluded. It would have been preferable for him to address the inconsistency in the evidence regarding the television. As noted by the Supreme Court of Canada in R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 134, however, issues that would be critical to the description of a sexual assault in most cases, such as the time and place of the assault, may be peripheral details from the perspective of a child. It was open to the trial judge to conclude, as he may well have done, that the television was likewise a peripheral detail in K.B.’s account, given her detailed description of the sexual assault itself and her age at the time it occurred.

[11] An appellate court should not interfere with a trial judge’s findings of credibility if the core of a complainant’s allegation remains largely intact on a review of the entirety of the evidence: R. v. R.E.M., 2008 SCC 51 at paras. 32, 55-56, and 64. Based on the reasons for judgment, the trial judge accepted the core of K.B.’s allegation about the fourth sexual assault.

[12] We accordingly do not find this ground of appeal made out.

Ground 2: Basis of the trial judge’s finding that Y.S. and K.B. were credible witnesses

[13] The appellant contends that the trial judge erred in finding that K.B. and Y.S. were credible based on their lack of embellishment or exaggeration.

[14] In assessing Y.S.’s evidence, the judge stated:

I found [Y.S.] to be a credible and reliable witness who testified in a straightforward and honest fashion. She was not contradicted in cross-examination. Her evidence was internally consistent, and uncontradicted by other evidence in any material way. She made absolutely no attempt to embellish her evidence. She disclosed only one incident of touching by her brother when she was approximately six years old. She could not say whether penetration occurred.

[15] The trial judge made the following findings about K.B.’s evidence:

Having reviewed the evidence of [K.B.] in the context of the evidence in its entirety, I am satisfied beyond a reasonable doubt that she was assaulted by the accused in the manner she described in relation to the third incident for which there is significant corroboration, as well as the fourth incident. [K.B.] did not attempt to exaggerate her evidence in connection with these allegations. Although there was a significant inconsistency in relation to the second incident, as detailed above, I note that she was, at the very least, candid about not seeing the accused’s face during the first incident.

[16] As held by the Supreme Court of Canada in R. v. Gerrard, 2022 SCC 13, lack of embellishment cannot be used to bolster a complainant’s credibility, unless a witness has a motive to lie. This is because, “[w]hile identified exaggeration or embellishment is evidence of incredibility, the apparent absence of exaggeration or embellishment is not proof of credibility … [B]oth truthful and dishonest accounts can appear to be without exaggeration or embellishment”: R. v. Kiss, 2018 ONCA 184, at para. 52.

[17] Reading the impugned statements in the context of the reasons for judgment as a whole, we are not persuaded that they show that the trial judge impermissibly relied on the complainants’ lack of embellishment as an important factor to enhance the complainant’s credibility, as in R. v. Alisaleh, 2020 ONCA 587, at para. 17. As defence counsel acknowledged in oral submissions, the trial judge did not explicitly say that he considered that the complainants’ lack of exaggeration and embellishment bolstered their credibility. Defence counsel argued that this could be inferred based on the Crown’s submissions at trial. Whether or not such an inference can be made, however, we find that the complainants’ lack of embellishment was simply one feature amongst many mentioned by the trial judge in assessing their evidence.

[18] The judge characterized Y.S.’s evidence as “straightforward and honest”, “internally consistent” and “uncontradicted”. He also gave examples of why he considered her evidence reliable. For example, he mentioned her admission that she did not know whether penetration occurred, illustrating candour. Elsewhere in his reasons, the trial judge found that Y.S.’s account was corroborated by other witnesses.

[19] As already mentioned, the trial judge reviewed K.B.’s evidence thoroughly. In addition to her account of the four alleged incidents involving the appellant, he considered her testimony on her discussions with C.M. and inconsistencies in her statements to police and her testimony at trial. Having completed this review, the judge concluded that she was a reliable and credible witness.

[20] We also agree with the Crown that the reasons must be read in the context of defence counsel’s submissions at trial. In cross-examination, defence counsel suggested that both Y.S. and K.B. were motivated to fabricate their evidence for monetary gain, that they orchestrated the allegations and colluded. As already noted, a complainant’s lack of embellishment and exaggeration may be relevant if they may have a motive to lie. This was the very suggestion pursued by defence counsel in cross-examination and, to a certain extent, in closing argument.

[21] A trial judge does not automatically fall into error simply by noting a complainant’s lack of embellishment or exaggeration in the reasons for judgment. In R. v. Kiss, this court upheld a sexual assault conviction even though the trial judge twice referred to a complainant’s lack of embellishment in his reasons, noting at para. 53 that:

[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. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible.

[22] Based on the reasons as a whole, we are similarly persuaded in this case that the trial judge simply cited K.B. and Y.S.’s lack of embellishment and exaggeration to explain why he did not reject their evidence.

[23] It is for these reasons that the appeal was dismissed.

“M. Tulloch C.J.O.”

“I.V.B. Nordheimer J.A.”

“S. Gomery J.A.”