



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. W.R., 2020 ONCA 813

DATE: 20201217

DOCKET: C65088

Simmons, Lauwers and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.R.

Appellant

James Mencel, for the appellant

Lisa Fineberg, for the respondent

Heard: November 18, 2020 by video conference

On appeal from the convictions entered by
    Justice Nancy S. Kastner of the Ontario Court of Justice on September 28, 2017.

Nordheimer J.A.:

[1]

WR appeals from his convictions for sexual
    assault and assault. The allegations involve his stepson with respect to the
    sexual assault conviction and his son with respect to the assault conviction.
    While originally also charged with sexual assault respecting his son and sexual
    interference with respect to both boys, the appellant was acquitted of those
    charges.

Background

[2]

The appellant was charged with sexually
    assaulting his son CD on one occasion and his stepson AB on two occasions. At
    the relevant time, the appellant, CD, and AB, all lived together with GH, who
    was the mother of both complainants.

[3]

According to CD, when he was six years old, his
    father forcibly removed a soccer shirt from his back. CD believed that, in the
    course of removing the shirt, the appellant fondled his genitals. His memory of
    this incident came back to him through flashbacks starting when he was 16.
    During cross-examination, CD admitted that he was unsure if the touching was
    incidental to the removal of the shirt. Due to this uncertainty, the trial
    judge acquitted the appellant of sexually assaulting CD but convicted him of
    simple assault.

[4]

While the evidence on how the events involving
    both CD and AB came to be disclosed is somewhat confused, it seems clear that
    CDs initial disclosure of what CD believed was a sexual assault, led to ABs
    disclosure. All of this occurred after the appellant had left the family and
    moved out of the family home. CD says that he told his mother of the assault in
    response to her continuing to muse about reconciling with the appellant. That
    possibility angered CD and, in the course of trying to dissuade his mother from
    any such reconciliation, CD eventually told her that the appellant had sexually
    assaulted him. Indeed, CD initially told his mother that the appellant had
    raped him, but CD later admitted that there had not been any rape. CDs
    mother told him that she did not believe his allegations.

[5]

CD was angry that his mother did not believe him.
    He spoke to AB, to whom CD had been very close as they grew up. CD is unclear
    as to what he precisely told AB although he latterly admitted that he may have
    told AB that the appellant had raped him. There is also disagreement over what
    AB said in response. AB said that he did not tell CD about the appellant having
    sexually assaulted him, whereas CD says that AB did tell him. AB says that he
    only told his mother about the sexual assault when he told her that she should
    believe CD because the same thing had happened to him. To further the
    confusion, the mother says that CD did tell her about the appellants abuse of
    AB and that is what caused her to call AB and ask him about it. One thing is
    clear and that is that AB told his mother about the abuse so that she would
    believe what CD was telling her, as AB was very protective of CD.

[6]

CD was twenty years old at the time that he told
    his mother of the abuse. AB was twenty-eight. Both of them were very angry with
    the appellant who had been generally abusive towards them, and their mother,
    during the time that he lived in the home. The appellant was also unfaithful,
    and he abused both alcohol and drugs. After the appellant left the family home,
    the mother was constantly tearful about his departure. In response, CD and AB
    were making every effort to remind GH how awful the appellant was to her and to
    them, so that she would stop crying, and to ensure she would not reconcile with
    the appellant.

[7]

In terms of the allegations involving AB, he gave
    evidence that he was abused twice when he was 14 years old. According to his
    testimony, AB was wrestling with CD when the appellant joined in. AB said that
    the appellant grabbed his butt momentarily.

[8]

With respect to the second assault, AB testified
    that he was asleep in his bed when he woke to grunting noises. For a fleeting
    moment, he realized that someone was thrusting on his back. As soon as he woke,
    the person jumped off and went to the doorway, where he stood for maybe two
    seconds before disappearing down the hall. While he was standing in the
    doorway, AB, who admitted he was in a confused state, said that he could see that
    the person was the appellant. AB got up and went to the hallway, to find no one
    there. He then went to the appellants door, which was 44 feet down the
    hallway, to find what AB described as the appellant pretending to be asleep in
    his bed.

[9]

AB was confused as to what had happened, until
    he went to the bathroom, wiped his behind, and saw blood on the tissue. He then
    realized what had happened: the appellant had anally penetrated him. AB did not
    tell anyone about what had happened. He only came forward when he became aware
    that CD was making similar allegations and that their mother was not believing CD.

The finding of assault involving CD

[10]

There was no dispute at the trial that the
    incident with the soccer shirt had taken place. A friend of the appellant was
    visiting in the home and expressed interest in the soccer shirt that CD was
    wearing. The appellant told CD to take the shirt off and give it to the friend.
    The appellant was drunk at the time and may have also been consuming drugs.
    When CD refused to give up his shirt, the appellant took CD to the bathroom and
    physically removed the shirt. In doing so, CD says that the appellant touched
    his genitals and his buttocks, although he ultimately admitted that the
    touching might have resulted from the appellant reaching in to grab the shirt, which
    was tucked in.

[11]

The trial judge acquitted the appellant of
    sexual assault and sexual interference arising from this incident, because of
    the uncertainty that there was any sexual motive to the touching. However, she
    convicted the appellant of the lesser included offence of simple assault. In
    doing so, the trial judge said, at para. 275:

This assault was not to discipline C.D. or for
    any educative purpose. It was the act of a bully upon a vulnerable child.

[12]

In my view, there can be no serious challenge to
    the trial judges conclusion in this regard. On the evidence, it was open to
    the trial judge to find that the appellant had not removed CDs shirt for any
    legitimate parental objective but, rather, had done so in a drunken state as a
    way of showing his power over CD. The trial judges conclusion in this regard
    is owed deference by this court.

The sexual assault involving AB

[13]

With respect to the wrestling incident, the
    trial judge said that she could not be sure that the appellants actions in
    grabbing ABs buttocks had been sexual in nature, given the surrounding
    circumstances. She noted that AB himself was unsure of whether there was a
    sexual connotation to the action. Thus, she acquitted the appellant of the
    charges arising from that incident.

[14]

However, on the second incident, the anal rape
    incident, the trial judge convicted the appellant. She did so for several
    reasons. One was that she found AB to be a very good witness, who she said was thoughtful
    and credible in his evidence. Another was that while there were inconsistencies
    in ABs evidence, they did not raise a reasonable doubt in her mind. She
    reviewed four of those inconsistencies and found that three of them were not
    inconsistencies deserving of any weight. The fourth inconsistency, namely differences
    in what he had said about the event at different points in time, especially
    relating to the amount of blood that was present, was of more concern to her.
    However, she ultimately concluded that the inconsistencies were of the type
    that were to be expected, when one took into account that AB was fourteen at
    the time, and many years had passed since the event when AB was first called
    upon to speak about it.

[15]

Ultimately, the trial judge believed AB and
    found the appellant guilty of sexual assault arising from the anal rape
    incident. She gave detailed reasons for her conclusion. Her evaluation of the
    evidence is, again, entitled to deference.

The motive issue

[16]

One issue that the appellant raises that is of
    concern is the trial judges handling of the issue of motive. Both CD and AB
    admitted that they hated the appellant, and both wanted to see him go to jail
    for what he had done, not only to them, but also to their mother. Consequently,
    they both had reasons to either fabricate their allegations involving the
    appellant, or to embellish the events.

[17]

The trial judges analysis of this issue is problematic.
    In her reasons, at para. 144, she said:

Motive is a question of fact. In this case,
    the Court finds that AB and CD have no discernable motive to fabricate their
    evidence. The Court is not in doubt.

[18]

I begin this issue by noting that there is a
    difference in law between an absence of evidence of a motive to fabricate (that
    is, no evidence either way) and a proven absence of a motive to fabricate (that
    is evidence that establishes that no motive existed). The former is an element
    that may be considered in assessing the credibility of a witness, but it is
    only one element. On the other hand, the latter may be a compelling reason to
    conclude that the witness is telling the truth. This distinction is set out in
R.
    v. L. (L.)
,
2009 ONCA 413, 96 O.R. (3d) 412, where Simmons J.A.
    said, at para. 44:

When dealing with the issue of a complainant's
    motive to fabricate, it is important to recognize that the absence of evidence
    of motive to fabricate is not the same as absence of motive to fabricate.

[19]

Neither of these situations arose in this case.
    There was evidence of a motive to fabricate, as I have already set out. It
    follows from that fact that there could be no evidence of a proven absence of motive
    to fabricate. The problem that arises from the trial judges choice of words is
    that they could be read as saying the opposite.

[20]

Despite the language used, I do not take the
    trial judge as having found that there was a proven absence of a motive to
    fabricate. Rather, I see her language as indicating that she did not accept
    that AB and CD, despite evidence of a motive to fabricate, were, in fact, fabricating
    their allegations for that ulterior purpose. In particular, as it relates to
    AB, the trial judge reviewed the reasons why she accepted ABs evidence, all of
    which were within her purview as the trial judge. Motive was but one of the
    considerations in her analysis.

[21]

I would add, in considering this issue, the
    corollary point which is that the fact that there may be a motive to fabricate
    does not mean that a witness is not telling the truth. As this court said in
R.
    v. Batte
, (2000) 49 O.R. (3d) 321 (C.A.), 145 C.C.C. (3d) 449, at para.
    121: "[t]he presence or absence of a motive to fabricate evidence is only
    one factor to be considered in assessing credibility."

[22]

Thus, while the issue of motive to fabricate
    could have been better explained, I do not find that the trial judges handling
    of this issue amounts to a palpable and overriding error. Of importance is the
    fact that the issue of motive did not drive the trial judges credibility
    findings as they relate to either AB or CD. Equally important is the fact that,
    at no point, did the trial judge suggest that her views on the motive issue led
    her to conclude that AB and CD must be telling the truth.

The tainting issue

[23]

The appellant also complains that the trial
    judge erred in her consideration of the possibility of tainting of the evidence
    between CD and AB. I do not accept that the trial judge made any such error.

[24]

This case is not factually similar to the
    situation in
R. v. J.F
.
(2003), 177 C.C.C. (3d) 1 (Ont. C.A.), upon
    which the appellant relies. There was virtually no evidence in this case to
    suggest that CD and AB had colluded with each other in making their allegations
    and there was very little evidence that could sustain any suggestion of
    tainting, whether consciously or unconsciously.

[25]

The alleged assaults were very different in
    nature. In addition, both CD and AB admitted that they were uncertain whether
    the touching was of a sexual nature, except, of course, for the anal rape. The
    fact that both boys were prepared, independently, to offer that acknowledgment
    would, by itself, discount any suggestion of tainting.

[26]

Further, the facts demonstrated that there was
    very little discussion between CD and AB about the respective incidents. Indeed,
    the evidence shows that both of them were very reluctant to speak about these
    matters with anyone. Consequently, there was little opportunity for there to be
    any real prospect for any tainting of their evidence.

[27]

The trial judge directly addressed this issue in
    her reasons. She set out her conclusion that there was no collusion or tainting
    of the evidence between CD and AB and gave her reasons for that conclusion,
    including noting that CD made his allegations before he knew anything about
    what had happened to AB. The trial judges conclusion on this issue is entitled
    to deference. It cannot be interfered with, absent a showing that the trial
    judge committed a palpable and overriding error. None has been shown in this
    case.

Conclusion

[28]

The appeal is
    dismissed.

I.V.B. Nordheimer J.A.

I agree. Janet Simmons J.A.





Lauwers J.A.
    (Concurring):

[29]

I concur in the
    decision to dismiss the appeal. I came to this conclusion hesitantly and with
    reservations related to the adequacy of the reasons for decision, as I will
    explain.

[30]

I accept the
    law, as my colleagues lay it out, on the difference between an absence of
    evidence of a motive to fabricate (that is, no evidence either way) and a
    proven absence of a motive to fabricate (that is evidence that establishes that
    no motive existed). For me, the case does not turn on this legal issue. My
    disquiet was rooted in the trial judges unsatisfactory treatment of the motive
    to lie or fabricate on the part of the complainants.

[31]

The trial
    judges treatment of the motive to lie extends over four pages and 32
    paragraphs. My colleagues cite para. 143 of the trial judges reasons, which I
    repeat for convenience:

Motive is question
    of fact. In this case, the court finds that AB and CD have no discernable
    motive to fabricate their evidence. The court is not in doubt.

[32]

I agree with my
    colleagues that: The trial judges analysis of this issue is problematic. As
    my colleagues acknowledge:

Both CD and AB
    admitted that they hated the appellant, and both wanted to see him go to jail
    for what he had done, not only to them, but also to their mother. Consequently,
    they both had reasons to either fabricate their allegations involving the
    appellant or to embellish the events.

[33]

There were
    several elements of the narrative that troubled me. First, CD admitted that he
    lied to his mother when he told her that the appellant had raped him. He told
    police that he had not been raped and adopted that statement on
    cross-examination. His shifting allegation is important because CD first disclosed
    the alleged sexual assault in an attempt to persuade his mother give up on
    reconciling with his father. He explained on cross-examination:

Q. I see. And then
    you were trying to convince her that really, look, your father is a bad guy,
    you shouldnt be defending him, right?

A. Yeah.

Q. And you said in
    the context - in that context you said, look, hes not a good guy, you
    shouldnt defend him, and in fact the first thing you said was that he raped
    you.

A. Yeah, I - yeah.
    Very, like - Id say at that time it was very unstable.

Q. Look, Im not
    trying to trick you. Im trying to get at the sequence of what was said by
    which people, because...

A. Yeah, thats what
    I said.

[34]

CD wanted to
    say something sufficiently serious to shut down his mothers continual lament
    over the loss of her relationship with the appellant and her hope of
    reconciliation. The trial judge acknowledged but did not adequately grapple in
    her reasons with the possibility that CD fabricated the story in order to
    further drive the wedge in between his parents.

[35]

Second, the
    evidence is unclear as to whether CD disclosed the allegation of rape to AB, or
    whether his mother did so. AB initially testified that They [CD and GH] were
    arguing about her  her drinking, and [CD] basically told my mom that he was
    sexually abused by his biological father. AB then said: And then, after a
    while, my mom called me to reach out to my brother, to find out whats going on
    with him, and when I did talk to him, he said, no one believes me, my
    biological father sexually abused me. However, AB also indicated that CD had
    called him after the argument, saying when my brother called me, and he said
    no one would believe him, I knew exactly what he was feeling. On
    cross-examination, AB seemingly confirmed that CD had called him first after
    the argument with his mother, saying: He called me crying, saying this is what
    happened to him, and no one would believe him. CD also testified that he
    called AB first, shortly after telling GH. The trial judge did not resolve how
    it came to be that AB knew about CDs rape allegation, and how this might play
    into her assessments of both credibility and reliability.

[36]

Third, ABs
    motivation seems to turn in part on his protective relationship with his
    younger brother CD and his desire to support CD as he had in the past. It is
    clear that CDs allegation of sexual abuse provoked ABs disclosure of anal
    rape. AB said so at least three times during his testimony. The trial judge
    failed to consider how CDs false disclosure might have motivated a false
    disclosure by AB.

[37]

I agree with
    the observation in
Batte
that: The presence or absence of a
    motive to fabricate evidence is only one factor to be considered in assessing
    credibility. But the motive to fabricate here was palpable. The trial judges
    bald statement that AB and CD have no discernable motive to fabricate their
    evidence is simply untenable. Regrettably, the trial judge failed to grapple
    directly with the evidence of the brothers strong motivation to fabricate in
    her reasons.

[38]

However, I join
    with my colleagues in the result based on the trial judges superior ability to
    assess credibility and reliability, and my own review of the transcripts. But
    there is no doubt, as my colleagues acknowledge: the issue of motive to
    fabricate could have been better explained.

Released: December 17, 2020 JS

P.
    Lauwers J.A.


