



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), (2.1), (2.2), (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    that could identify the victim or a witness shall not be published in any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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 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 at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

(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    shall not be published in any document or broadcast or transmitted in any way.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; and

(b) on application of the victim or the
    prosecutor, 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; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18.

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. C.C., 2020 ONCA 396

DATE: 20200619

DOCKET: C67431

MacPherson, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.C.

Appellant

C.C., acting in person

Jessica Smith Joy, for the respondent

Heard: June 15, 2020 by Videoconference

On appeal from the convictions entered on February 28,
    2018 and the sentence imposed on September 5, 2018 by Justice Brenda M. Green
    of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual interference with a person under
    16 years of age and invitation to touching with a person under 16 years of age.

[2]

The complainant was eight to nine years old at the time of the alleged
    incidents. Her parents were separated. The complainants principal residence
    was with her mother. Her father had liberal access and the complainant spent
    some weekday nights and every second weekend at his home.

[3]

The appellant was the complainants fathers best friend and lived in
    his house. He was very close to the complainant who regarded him as an uncle.
    The father trusted the appellant explicitly and the complainant and the
    appellant were often alone together in the house.

[4]

In 2016, when the complainant was 15 years old, she told a school
    guidance counsellor, then her parents, and finally the police that in
    2009/2010, when she was eight to nine years old, the appellant sexually
    assaulted her. These assaults, she said, took place one to two times per week
    for about a year.

[5]

At the trial, the complainant, her mother and her father testified.
    Although in her testimony the complainant described a year-long pattern of
    sexual abuse on many occasions, she focused on three incidents that she
    specifically described in detail: the birthday incident, the pornography
    incident, and the sexual intercourse incident.

[6]

The trial judge found that the complainant was a reliable and credible
    witness. She convicted the appellant of sexual assault, sexual interference,
    invitation to sexual touching, and exposing his genitals. The sexual assault
    and exposing genitals charges were conditionally stayed on the basis of
R.
    v. Kienapple
, [1975] 1 S.C.R. 729.

[7]

The trial judge imposed a sentence of six years imprisonment in addition
    to credit for 56 days of pre-sentence custody. The trial judge observed that
    the sentence would have been longer but for the fact that the appellant had
    been on bail for a lengthy period of time before the trial.

[8]

The appellant appeals from the conviction and the sentence.

[9]

On the conviction appeal, the appellant makes three arguments.

[10]

First,
    the appellant contends the trial judge failed to address credibility and
    reliability concerns with respect to the complainants evidence and ignored
    flaws in the Crowns case that were capable of raising a reasonable doubt.

[11]

We
    do not accept this submission. The trial judge engaged in a very extensive and
    careful analysis of the testimony of a teenager trying to recall and describe
    traumatic events that had taken place approximately nine years before when she
    was eight or nine years old. The trial judges conclusion that the complainant
    was both credible and reliable was well supported by the evidence she accepted.

[12]

Second,
    the appellant submits that since the trial judge did not accept that actual
    intercourse took place during one of the alleged assaults, this should have led
    her to reject the complainants testimony about all of the alleged sexual
    events.

[13]

We
    are not persuaded by this submission. A trial judge is entitled to accept all,
    some or none of a witness testimony. As stated above, in this case the trial
    judge engaged in a lengthy and careful review of the complainants evidence.
    For the most part, she believed the complainant. On one point  i.e., whether
    there was actual sexual intercourse on one occasion  the trial judge was
    entitled to conclude, based on the complainants description and the
    surrounding circumstances relating to her disclosure, that she was not
    satisfied beyond a reasonable doubt that this component of the complainants
    description of a particular assault was made out. This inured to the
    appellants benefit.

[14]

Third,
    the appellant asserts that the complainants willingness to go to the
    appellants basement room belies her testimony that she was sexually abused
    almost weekly for an entire year.

[15]

We
    disagree. The complainant was an eight-year-old girl who loved and trusted her
    uncle. It would be wrong to say that she must have had the intellectual and
    physical capacity to say No to her uncle.

[16]

On
    the sentence appeal, the appellant contends that the trial judge erred by not
    rejecting the entire incident where the complainant said that actual sexual
    intercourse occurred.

[17]

We
    disagree. The trial judge was entitled to base her sentence on her findings
    relating to all of the events, including her partial acceptance of the
    complainants testimony relating to this particular event.

[18]

The
    appellant submits that, in fashioning his sentence, the trial judge did not
    give sufficient weight to his character letters or his own history of sexual
    abuse as a boy.

[19]

The
    character letters were very general. Moreover, one of the overriding factors in
    sentencing a person who has sexually abused a child is to acknowledge the
    terrible harm child complainants suffer in these situations. The sentence
    imposed by the trial judge in this case is faithful to that overarching goal.

[20]

The
    conviction appeal is dismissed. The sentence appeal is dismissed except for the
    $200 victim surcharge per offence, which is set aside.

J.C. MacPherson J.A.

G. Pardu J.A.

Gary Trotter J.A.


