



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(1), (2), (3) or (4)
    or 486.6(1) or (2) 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    the complainant or a witness shall not be published in any document or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, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 346 or 347,

(ii) an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, make the order.

(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.

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(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. 2005, c. 32, s.
    15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.J.L.,
    2015 ONCA 333

DATE: 20150512

DOCKET: C58447

Gillese, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.J.L.

Appellant

Jill D. Makepeace, for the appellant

Avene Derwa, for the respondent

Heard:  May 8, 2015

On appeal from the conviction appeal from the decision by
    Justice Helen M. Pierce of the Superior Court of Justice, dated December 4,
    2013.

Lauwers J.A.:

[1]

Following a judge-alone trial, the appellant was convicted of sexual
    interference based on a single act of sexual intercourse forced on the
    13-year-old daughter of his common law spouse.  He was acquitted of sexual
    assault based on the allegation that he fondled the complainants buttocks on
    numerous occasions. The appellant was sentenced to three years incarceration,
    and appeals his conviction.

[2]

The appeal focused on three issues:  First, whether the trial judge
    failed to consider conflicts in the complainants evidence in assessing her
    credibility; second, whether the trial judge applied different standards of
    scrutiny to the evidence of the appellant and the complainant; and, third,
    whether the trial judges approach to the evidence on the count of sexual
    assault can be reconciled with her approach to the evidence on the rape count.

Problems with the Complainants Evidence

[3]

The appellant argues that the trial judge took a forgiving and
    lenient approach to the complainants evidence, and challenges four central
    findings made by the trial judge, or the pillars that supported her
    acceptance of the complainants evidence.

[4]

The first was her mothers evidence that upon her return from a lengthy
    hospital stay, after the date of the alleged rape, the complainants behaviour changed.
      In our view, the trial judge took a measured approach to the mothers
    evidence. She recognized that, although the mothers assessment of the
    complainants behaviour before the alleged rape might have been too rosy, the
    evidence showed a dramatic escalation of the complainants misbehaviour after
    her mothers return from the hospital. I see no contradiction in this approach,
    only realism.

[5]

The second finding was that the appellant was controlling and coercive,
    which supports the concept that the appellant would force intercourse on the
    complainant. The evidence shows that even though the appellant was not to have
    any disciplinary responsibility for his stepdaughter, he nonetheless monitored
    her for smoking by following her surreptitiously to the local swimming pool and
    by participating in the searches of her room. The appellant argues that the
    finding does not flow from the evidence. To the contrary, this evidence amply
    supports and explains the trial judges finding.

[6]

The third finding was that the complainants relationship with the
    appellant was poor. The trial judge relied on the evidence about the
    complainants complaint to the Childrens Aid Society as support for this
    finding. Although the complaint itself related to the mothers slapping the
    complainant, it was open to the trial judge, based on the information disclosed
    as part of the narrative, to find that the relationship between the complainant
    and the appellant was poor.

[7]

Finally, the appellant argues that the trial judge failed to properly
    take into account the complainants admitted dishonesty and her practised lying
    from an early age, in assessing her evidence. The trial judge accepted the
    complainants admission of her previous dishonesty and her assertion that she
    is now a truthful person. The trial judge noted:

Generally she answered hard questions at trial such as her
    supplier of marijuana in a forthright and unvarnished way. In my view, her
    evidence about the assault was internally consistent. While it was not a
    detailed account, any consistencies can be attributed to the passage of time.

[8]

The appellant attacked this observation by focusing on only a single
    hard question, which was the name of the complainants drug supplier. He
    argues that the reasoning is circular, since the truth of the observation
    depends on an implicit determination that the complainant provided the actual
    name of her supplier, and cites
R. v. V.Y.
2010 ONCA 544 at paras.
    22-23. I note, however, that the trial judge did not depend on one observation
    only, since she used the words hard questions. The evidence shows that the
    complainant answered more hard questions, for example, about her heavy drug
    use, her deceit, and her attempts to mutilate and kill herself. The trial
    judges reasoning was not circular but was rooted in the evidence.

[9]

I see no error in the trial judges approach to the complainants
    evidence or in her acceptance of the complainants testimony about the rape.

Different Standards of Scrutiny

[10]

To
    succeed on the second ground, that the trial judge applied different standards
    of scrutiny to the evidence of the appellant and the complainant, as this court
    noted in
R. v. J.H.
,
[2005] O.J. No. 39 at para. 59:

The appellant must point to something
    in the reasons of the trial judge or perhaps elsewhere in the record that make
    it clear that the trial judge had applied different standards in assessing the
    evidence of the appellant and the complainant.

[11]

The
    appellant argues that the trial judges assessment of his evidence was unduly
    strict, particularly since his denials of the complainants allegations were
    not challenged in cross-examination. I disagree.

[12]

The
    evidence does not show that his testimony was subjected to unduly strict
    assessment. Three elements of the evidence were telling to the trial judge. The
    first was that the appellant followed the complainant to the local outdoor swimming
    pool on a number of occasions. The trial judge considered this conduct to be
    sexually oriented. She noted that the complainant and her friends were wearing
    bathing suits at the pool. She then added: Making note of the underwear
    controversy, his excuse that he was attempting to prevent her smoking rings
    hollow. Instead she saw this conduct as a form of sexual grooming.  She then
    added:

She was available to him after school. He could test her
    resistance by fondling her buttocks in the guise of checking her underwear.
    This is plausible.  His conduct in following her was inappropriate.

Given the evidence before her, the inferences that the
    trial judge drew were available.

[13]

The
    second concerned the opportunity that the appellant might have had to assault
    the complainant after school. The trial judge did not accept  the appellants
    testimony about  the frequency with which the complainant arrived home before
    her siblings. The trial judge notes in her decision that the appellant:

[T]estified that in the seven years he lived with the family
    there was maybe twice that [the complainant] was home from school before her
    brother and then only for a few minutes. I could not accept his evidence on
    this point. The evidence establishes that there were times when [the appellant]
    was home alone with [the complainant].

The trial judge amply explains this finding.

[14]

Third,
    the complainant testified in examination-in-chief that he spent 75% of his time
    at the hospital during the weeks that the mother was admitted, again reducing
    the opportunity he might have had to commit the rape. He then qualified his
    original estimate in chief during cross-examination. The trial judge said: I
    find this to be an exaggeration. This was not an unreasonable finding.

The trial judges doubt on the
    sexual assault count should have applied to the rape count as well

[15]

The
    appellant challenges the trial judges credibility findings based on what the
    appellant argues is an unresolved contradiction: the complainants evidence was
    not capable of supporting a conviction on the sexual assault charges, because
    it was contradicted by the mothers evidence, but the complainants evidence
    was capable of supporting a conviction on the rape count, even though it was an
    uncorroborated allegation.

[16]

The
    count of sexual assault related to complaints that the appellant would fondle
    the complainants buttocks while ostensibly checking that she was wearing
    proper underwear, as required by her mother, and not thongs. The appellant
    testified that he supported the mothers ban on thongs: He did not believe
    thong underwear was appropriate because when a child bent down half their rear
    end shows.

[17]

The
    trial judges decision to acquit the appellant on count one was not on the
    basis of the appellants evidence, which she pointedly stated that she did not
    believe, but on the basis of conflicts in the evidence between the mother and
    the complainant. The mother could only recall one incident in which the
    complainants thongs were confiscated, as against the complainants account
    that she got into trouble over wearing thongs more often because of the
    appellants reports to her mother after he fondled her buttocks and discovered
    she was wearing thongs. The conflicts in the evidence between the mother and
    the complainant raised a reasonable doubt in the trial judges mind on the
    count of sexual assault alone.

[18]

By
    contrast, the trial judge used the appellants evidence about the thongs in
    assessing his evidence relating to the rape, as showing a problematic sexual
    interest in the complainant. There is, in my view, no contradiction between the
    trial judges reasonable doubt on the fondling count, and her satisfaction that
    the rape count had been proved beyond a reasonable doubt.

[19]

I
    would, therefore, dismiss the appeal.

Released:  May 12, 2015 EEG

P.
    Lauwers J.A.

I
    agree E.E. Gillese J.A.

I
    agree K. van Rensburg J.A.


