



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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 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; 2005, c. 43, s.
    8(3)(b).

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. S.D.S., 2014 ONCA 4

DATE: 20140103

DOCKET: C51940

Rosenberg, Rouleau and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.D.S.

Appellant

Mark Halfyard, for the appellant

Alison Wheeler, for the respondent

Heard: November 28, 2013

On appeal from the conviction entered on April 17, 2009,
    and the sentence imposed on September 18, 2009, by Justice
Laurence
    A. Pattillo
of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault and touching for a sexual
    purpose of an eight year old boy.  He appeals from his convictions, arguing
    that the trial judge ought to have assessed credibility differently.  He
    submits that the trial judge gave too much latitude to a 12 year old child
    witness testifying about events occurring four years earlier, did not give
    enough weight to inconsistencies in the childs evidence, gave too much weight
    to the childs demeanour and misapprehended the appellants evidence about the
    number of times he had babysat the boy.  He also submits that errors by an
    interpreter made the trial unfair.

[2]

The child complained of two incidents of anal intercourse, and two
    incidents of fellatio, all said to have occurred when his mother and older
    brother went out and left him in the care of the appellant.

[3]

As observed in
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at
    para. 32, citing
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788:

[W]here credibility is a determinative issue, deference is in
    order and intervention will be rare (para. 26).  While the reasons must
    explain why the evidence raised no reasonable doubt, there is no general
    requirement that reasons be so detailed that they allow an appeal court to
    retry the entire case on appeal.  There is no need to prove that the trial
    judge was alive to and considered all of the evidence, or answer each and every
    argument of counsel (para. 30).

[4]

Here the trial judge correctly set out the law about child witnesses:

I am mindful that the evidence of children should not be
    assessed on the same standard as adult witnesses.  Rather, consideration of a
    childs evidence should be approached on a common sense basis.  While it is
    still important to take into account the strength and weakness of a childs
    evidence, regard must also be had to the childs mental development, understanding
    and ability to communicate, both at the time the events occurred and at the
    time of giving testimony in court.

[5]

The trial judge concluded that the complainant was a credible witness. 
    He evaluated the inconsistencies in detail but did not consider them
    significant.  One of the inconsistencies advanced in argument on appeal, by way
    of example, was that the complainant was inconsistent when he said at trial
    that he saw blood in his faeces, when at the preliminary inquiry he said he did
    not see blood.  In the course of the cross-examination, defence counsel put
    this prior statement to the complainant:

Okay. You told us that it hurt quite a bit when he put his
    wiener.

And you said: Yes.

And the lawyer said: And did you bleed a little?

And you said: No.

And the lawyer said: No blood on your bed sheets?

You said: No.

And the lawyer said: You didnt see any?

And you said: No.

[6]

It was open to the trial judge to conclude that there was no
    inconsistency here, as the complainant was talking about two different things:
    blood in the toilet and blood on the sheets.  A trial judge is in a better
    position than an appellate court to evaluate whether there was an inconsistency,
    and any effect it might have on the assessment of the complainants credibility
    and reliability.

[7]

Similarly, the trial judge concluded that new details that emerged in
    the course of the trial were not of a nature as to undermine the complainants
    credibility.

[8]

The trial judge concluded that the complainant was a credible witness,
    indicating:

The real issue for consideration in respect of the
    inconsistencies, is whether, when considered as a whole, such additions or
    inconsistencies, to the extent they are major, indicate that [the complainant]
    has fabricated his story concerning the incidents, or simply reflects the
    frailties of such testimony given his age at the time of the incidents, the
    time which has transpired since the events and the impact of the forum he found
    himself in.



I found [the complainant]s evidence of what happened credible.
    While [the complainant]s evidence on certain points was clearly different
    between earlier testimony, the evidence of other witnesses or between direct
    and cross, in my view the points were not major or were explained, particularly
    having regard to [the complainant]s age and development. In my view, they do
    not diminish overall what he said happened to him.  I accept, therefore, [the
    complainant]s evidence of what he said the accused did to him.  I do not
    believe he misconceived what happened nor do I believe that he was lying or
    that there was any form of conspiracy  to fabricate a story to keep the
    accused away from [F.]

[The complainant]s description of the events is not something
    that is known to every eight or nine-year old boy. I do not accept the defences
    submission that [the complainant] learned of it off the Internet or from watching
    movies on T.V. which the boys had in their room.  While [the complainant] and
    [his brother] said they had seen brief sex scenes between men and women during
    movies which they watched, they both denied they had ever seen male with male
    sex on the Internet or on T.V. I accept that evidence.

At the conclusion of his cross-examination, counsel for the
    defence suggested to [the complainant], in a series of long questions, that he
    was upset with the accused and did not want him to go back with his mom.  [The
    complainant] answered that that was true.  Counsel then suggested he was lying
    about what happened and that it had never happened.  [The complainant] said
    that was not true and that he was telling the truth about what happened.  In my
    view, I accept that [the complainant] was telling the truth about what
    happened.

[9]

The appellant has not demonstrated that the trial judge made any
    palpable and overriding error justifying appellate intervention in his
    assessment of the complainants evidence.

[10]

The
    appellant testified in examination-in-chief that he used to babysit the
    complainant once or twice a month.  In cross-examination, however, he
    repeatedly said that he looked after the complainant only one or two times in
    the two year period in issue.  The trial judge drew an adverse inference from
    this change and other aspects of his testimony and concluded that the
    appellant tried to understate many matters and thereby distance himself from
    the allegations. He rejected the appellants evidence and concluded that it
    did not leave him with a reasonable doubt.

[11]

Again,
    no error has been demonstrated in the way in which the trial judge assessed
    credibility.

[12]

These
    assessments were the trial judges to make and there is no reason to depart
    from the deference customarily accorded to findings of credibility.

[13]

There
    were some difficulties with the interpreters at trial.  Fresh evidence admitted
    on appeal demonstrates that the errors were minor and did not suggest that the
    interpreters were not competent.  The appellants counsel was fluent in
    Portuguese, and objected at times to the accuracy of the interpretation.  The
    trial judge seemed to treat this as if counsel was offering a personal,
    competing expert opinion and instructed him to refrain from correcting the
    interpreter.  The trial judge should not have discouraged these interventions. 
    In the end, the mistakes were dealt with appropriately as they arose and the
    fresh evidence does not establish that there was any other material error.

[14]

For
    these reasons, the appeal is dismissed.

M. Rosenberg J.A.

Paul Rouleau J.A.

G. Pardu J.A.


