



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.




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. 539(1),
    (2), (3) or (4) of the
Criminal Code
shall continue.  These sections of
    the
Criminal Code
provide:

539(1)          Prior to the
    commencement of the taking of evidence at a preliminary inquiry, the justice
    holding the inquiry

(a) may, if application therefor is
    made by the prosecutor, and

(b) shall, if
    application therefor is made by any of the accused, make an order directing
    that the evidence taken at the inquiry shall not be published in any document
    or broadcast or transmitted in any way before such time as, in respect of each
    of the accused,

(c) he or she is
    discharged; or

(d) if he or she is
    ordered to stand trial, the trial is ended.

(2)     Where an accused is not
    represented by counsel at a preliminary inquiry, the justice holding the
    inquiry shall, prior to the commencement of the taking of evidence at the
    inquiry, inform the accused of his right to make application under subsection
    (1).

(3)     Everyone who fails to comply
    with an order made pursuant to subsection (1) is guilty of an offence
    punishable on summary conviction

(4)      [Repealed, 2005, c. 32, s.
    18(2).]

R.S., 1985, c. C-46, s. 539;
    R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.S., 2019 ONCA 281

DATE: 20190409

DOCKET: C64653

Doherty, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.S.

Appellant

Ian B. Kasper, for the appellant

Sean Horgan, for the respondent

Heard and released orally: April 3, 2019

On appeal from the conviction entered on January 26, 2017
    by Justice S. Lavine of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of various offences arising out of
    the alleged sexual assault of S., his nine-year old daughter. S. testified and
    described various forms of sexual abuse that occurred over about a 10-month
    period. Her younger stepsister, A., also testified. She confirmed parts of S.s
    evidence about the sexual abuse, but in some ways her evidence was quite
    different than S.s evidence. The appellant testified and denied any sexual
    misconduct.

[2]

In the course of the defence, it put forward the position that S.
    had a motive to fabricate the allegations against the appellant and that A.
had gone along with S.s fabrication as a way of offering some
    explanation for how she came to be in possession of the vibrator that was found
    in her computer bag. The trial judge ultimately rejected the defence position
    and gave reasons for doing so.

[3]

The trial judge clearly appreciated the
    substance of the evidence and the respective positions of the parties. She
    articulated those positions in her reasons. The trial judge also instructed
    herself on key legal principles, including the burden of proof and the manner
    in which the evidence of children should be assessed.

[4]

The trial judge considered and rejected the
    appellants evidence. She gave two reasons for doing so. We need not go into
    any details with respect to those reasons as the appellants arguments focus on
    the trial judges acceptance of S.s evidence and not her rejection of the
    appellants evidence.

[5]

The trial judge was alive to the contradictions
    and inconsistencies in S.s evidence. She not only summarized those inconsistencies
    and contradictions, but referred to some of them in the context of her
    assessment of S.s credibility. The trial judge also referred to various
    factors in S.s demeanour and in the presentation of her evidence, which in the
    trial judges view enhanced her credibility.

[6]

Next, the trial judge contrasted S.s evidence
    with A.s testimony. She found S. credible and A. much less credible. This part
    of the trial judges reasons is significant for the purposes of appeal, in that
    it demonstrates that the trial judge appreciated the individualized nature of
    the credibility assessments she was obligated to make. The trial judge clearly
    made no inappropriate assumptions about the evidence of children or how
    children should behave when testifying. Rather, the trial judge made
    credibility findings after a critical analysis of the evidence of each witness.

[7]

In the end, the trial judge was clearly aware of
    the features in S.s testimony that could undermine her credibility and
    reliability. The trial judge also identified factors which, in her view,
    supported the credibility and reliability of the evidence. These factors
    considered, as a whole, ultimately led her to conclude, first, that S. was a
    credible witness whose evidence could be believed and, second, that her evidence
    established guilt beyond a reasonable doubt.

[8]

On a review of the reasons of the trial judge in
    the context of the entire record, it is clear how she arrived at her verdicts.
    She got there by first rejecting totally the material defence evidence as
    untruthful and secondly by a reasoned acceptance of the core of S.s evidence
    as it related to the allegations of sexual misconduct. The trial judge then
    placed that acceptance of S.s evidence in the context of the Crowns burden of
    proof and found that the case had been proved beyond a reasonable doubt.

[9]

For the reasons set out above, we are satisfied
    that the trial judges reasons did admit of appellate review and were adequate.
    We also find no error in the trial judges analysis of the evidence.

[10]

The appellant also submitted that the verdicts
    were unreasonable. We cannot agree with that submission. S.s evidence, if
    believed, and it was certainly reasonably capable of belief, provided ample
    evidence to support the verdicts arrived at by the trial judge.

[11]

The conviction appeal is dismissed.

[12]

Turning to the sentence appeal, the trial judge
    imposed a total sentence of three and one-half years. The appellant argues that
    the sentence should be reduced because the trial judge gave inadequate
    consideration to the appellants Aboriginal background. We disagree.

[13]

The reasons for sentence demonstrate that the
    trial judge gave proper consideration to this factor. The trial judge made
    numerous references to the
Gladue
Report that
    had been prepared for the purposes of sentencing. For example, she referenced
    the report at pp. 3 to 6 of her reasons for sentence. The trial judge also
    quoted from the relevant Supreme Court of Canada jurisprudence, e.g. see
R.
    v. Wells
, [2000] 1 S.C.R. 207
.

[14]

We are satisfied that the trial judge did give
    meaningful consideration to the appellants Aboriginal background. When
    considered with all of the other relevant factors in this case, which include
    the age of the victim, the seriousness of the abuse, and the egregious breach
    of trust, the sentence imposed was fit.

[15]

Leave to appeal sentence is granted, but the
    appeal from sentence is dismissed.

Doherty J.A.

S.E. Pepall J.A.

G.T. Trotter J.A.


