



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. D.G., 2020 ONCA 671

DATE:  20201028

DOCKET: C66278

Rouleau, Benotto and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.G.

Appellant

Jefferey Couse, for the appellant

Tanya Kranjc, for the respondent

Heard: October 19, 2020 by
    video conference

On appeal from the convictions entered
    on June 11, 2018 by Justice Louise L. Gauthier of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of sexual interference and two
    counts of assault against his stepson. The appellant was also found guilty on two
    counts of sexual assault for which stays were entered. The appellant was
    sentenced to 6 years imprisonment.

[2]

The complainant was a child aged six to nine years at the time of
    the alleged offences. When he was he was a young teenager, he disclosed that
    the appellant had sexually and physically abused him. He was 16 years old at
    the time of trial. He testified to two instances of sexual abuse. The first
    instance occurred in his bedroom when the appellant stroked his penis and
    sodomized him. The second occurred in a car inside the garage when he was again
    sodomized.

[3]

In 2015, the same year that the allegations were made and four years
    after the relationship between the appellant and the complainants mother
    ended, the appellant sent an apology to the complainant over Facebook for what
    had happened in the past. The Facebook messages were not available at trial,
    but the appellant and the complainant referred to them.

[4]

The appellant alleges that, in convicting him, the trial judge erred by:

1.

misapprehending
    the appellants explanation for the Facebook apology;

2.

reversing
    the onus of proof; and

3.

failing to
    resolve inconsistencies in the complainants evidence.

The apology

[5]

The appellant testified that he saw his photo on the Facebook page of
    the complainants mother. He wanted it deleted and began arguing with her. She
    blocked him. The appellant then turned to the complainant on Facebook and
    requested that he tell his mother to delete the photo. In the same series of
    messages, the appellant apologized to the complainant. He testified that the
    apology was for the offensive things he said to the complainants mother about
    her deceased children and for having spoken to the complainant in a higher
    tone of voice.

[6]

The trial judge did not believe the appellants explanation for the
    apology. She found it incomprehensible that he was apologizing for the tone
    of his voice some four or five years earlier. The appellant submits that this
    was a misapprehension because he was also apologizing for the offensive things
    he said about the deceased children. The appellant argues that this
    misapprehension was integral to the trial judges reasoning since it
    effectively turned the apology into an admission of guilt.

[7]

We do not agree. It was open to the trial judge to disbelieve the
    appellant. Her rejection of his explanation was in the context of her
    credibility assessment and she did not link it to an admission of guilt.

Onus of proof

[8]

The appellant submits that the trial judge did not apply
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742

and consequently reversed the burden
    of proof. He relies on the highlighted portion of the following paragraph from
    the trial judges reasons:

For the above reasons, I reject the accuseds evidence.  It
    does not raise a reasonable doubt.
Likewise,
    the balance of the evidence, including the frailties of [the complainants]
    evidence, do not leave me with a reasonable doubt that the accused committed
    the offences as charged
.
[Emphasis added.]

[9]

The appellant submits that the trial judge was placing an onus on him to
    disprove his guilt by deciding first that the appellants guilt had been proved
    beyond a reasonable doubt and
then
assessing the inconsistencies. Again,
    we disagree. While the trial judge did not refer to
W.D.
directly, she did refer to its three component
    parts. In addition, while we acknowledge that
the above paragraph
    could have been better worded, the reasons read as a whole make it clear that the
    trial judge was aware of the burden of proof and did not place an onus on the
    appellant. Also, in convicting the appellant, she added:

In conclusion, after having considered all the evidence, I am
    satisfied the Crown has proven its case beyond a reasonable doubt.

Failure to resolve inconsistencies

[10]

The
    appellant submits that the trial judge failed to resolve the inconsistencies in
    the complainants evidence. He points to two aspects: whether the bedroom door
    was locked in connection with the first assault; and whether the back seat of
    the car was folded down in connection with the second.

[11]

The
    trial judge is not required to resolve all inconsistencies in the evidence. She
    described these matters as peripheral details. She accepted the complainants
    evidence as to what the appellant did and concluded that this satisfied her
    beyond a reasonable doubt. That conclusion was available to her on the
    evidence.

Conclusion

[12]

For
    these reasons, the appeal on conviction is dismissed. The appellant withdrew
    the sentence appeal.

Paul
    Rouleau J.A.

M.L.
    Benotto J.A.

I.V.B.
    Nordheimer J.A.


