



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    the victim shall not be published in any document or broadcast or transmitted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. T.C., 2020 ONCA 469

DATE: 20200720

DOCKET: C66715

Pepall, Hourigan and Roberts
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.C.

Appellant

James Foord and Brandon Crawford, for
    the appellant

Megan Petrie, for the respondent

Heard: June 5, 2020, by video conference

On appeal from the conviction entered on
    October 21, 2018, by Justice Michelle OBonsawin of the Superior Court of
    Justice, with reasons reported at 2018 ONSC 6338.

REASONS FOR DECISION

I.

Introduction

[1]

The complainant, VC, alleged that her brother,
    the appellant TC, sexually assaulted her on an almost daily basis from the time
    she was four until she was approximately 16 or 17 years old. She reported the
    assaults to the police years later as an adult.

[2]

TC was charged with one count of sexual assault,
    one count of incest, two counts of sexual assault with a weapon (a hairbrush
    and a doll), and two counts of mischief for damaging VCs property, namely her
    dolls, clothing, and bedding. Each charge encompassed multiple incidents and
    spanned a 13 to 15-year period. TC was convicted on all counts.

[3]

TC raises the following issues on appeal:

(1)

The trial judge erred in law by misapprehending
    the importance of the evidence of AM, his ex-wife, and/or failing to provide
    meaningful reasons as to how that evidence could be reconciled with that of VC
;
and

(2)

the trial judge erred in law by applying uneven scrutiny
    to the Crown and defence evidence.

[4]

For the following reasons, we dismiss the
    appeal.


II.

Background Facts

[5]

TC is four years older than VC. CC is their
    father, and JC is their mother. VC testified that the sexual abuse began with
    touching when she was four years old, and progressed to digital penetration and
    penetration with objects such as a hairbrush and toothpaste tubes. VC testified
    that TC would insert his penis inside her vagina, the first time being when she
    was seven or eight years old. He would also occasionally penetrate her anally
    with his fingers.

[6]

VC gave evidence that when she was approximately
    in grade five, TC started playing with his penis near her mouth, and it
    progressed to him putting his penis inside of her mouth. She says that when TC
    would babysit her, he would masturbate, urinate and defecate on her. VC alleges
    that there was one incident when she was 14-15 years old when TC defecated
    inside her mouth while she was asleep. TC is also alleged to have masturbated
    on VCs belongings, including her underwear, dolls, hairbrush and bed. VC
    testified that she disclosed to AM that TC had abused her. She says that there
    were two occasions when another person witnessed a sexual assault by TC: once
    by a relative who was VCs age, and on another occasion by her father.

[7]

At trial, the Crown called a forensic scientist who
    testified that TCs semen was found on two of VCs dolls.

[8]

TC did not testify at trial. However, the
    defence called VC and TCs parents, as well as AM, as witnesses. The father
    denied witnessing a sexual assault, and both parents stated that they had never
    noticed urine or feces on furniture or bedding. AM testified that sounds would
    be heard throughout the house because the walls were thin, that VC never
    disclosed the sexual abuse to her, and that she never smelled urine or feces in
    VCs bedroom.

[9]

The Crown called VCs pediatrician in reply to
    respond to JCs evidence that she took VC to see the doctor because she was
    concerned that TC might have sexually assaulted her. The pediatrician had no
    recollection of potential sexual abuse being raised with her and had no note in
    her file to that effect.

[10]

The primary issue at trial was the credibility
    and the reliability of several witnesses evidence regarding the allegations of
    long-term sexual abuse by TC. The defence pointed out that VCs evidence was
    inconsistent on the details and timing of various incidents, that new
    information about various incidents was disclosed for the first time at trial,
    and that other witnesses contradicted her evidence. The Crown argued that VC
    was credible and reliable, that any inconsistencies were minor in nature, and
    that her evidence was corroborated by the forensic evidence of TCs semen on
    her dolls.

[11]

In her reasons, the trial judge summarized the
    Crown and defence submissions and reviewed the evidence of each witness in considerable
    detail.  She found that most of the inconsistencies in VCs evidence were with
    respect to the time and location of events and that it was understandable that
    such details would blend in VC's mind. She also found that new details
    disclosed during VCs testimony at trial were explained by the fact that VC was
    asked more questions than previously and that these new questions elicited
    further information. The trial judge did not find JC and CC to be credible or
    reliable witnesses but accepted AM's testimony regarding the house's acoustics.
    Ultimately, the trial judge was satisfied that the Crown had proven all of the
    charges beyond a reasonable doubt and convicted TC on all counts.

III.

Analysis

(1)

AMs Evidence

[12]

AM was the last defence witness. She testified
    briefly about the acoustics in the home, what she observed and smelled while in
    VCs bedroom, her alleged conversations with VC about the abuse, and
    communications with VC after VC had left the family home.

[13]

The trial judge summarized AMs evidence in her
    reasons and later commented as follows:

For her part, AM gave her evidence in a
    forthright manner. She was not combative during cross-examination, but very
    matter of fact. AM testified about two main areas: the acoustics of the house
    and VCs disclosure to her about being sexually abused by her brother. AM
    testified that she went to VC and TCs house for the first time in 2001. With
    respect to AM not smelling any odours in VC's bedroom, it is important to note
    that this was in 2001 and afterwards when VC was eighteen years old and TC was
    twenty-two years old. By this time, as per VCs evidence, the sexual assaults
    had stopped. It is therefore logical that there would not have been any odour
    by that time and if there was, VC laundered her bedding. AM also denied that VC
    told her about being sexually assaulted by TC.

AM described VCs complaints as a revenge
    tactic because she was angry at TC for breaking up the family business. AM
    testified that there was a Facebook message that demonstrated VCs anger,
    however, it was not tendered as an exhibit. AMs allegation about VCs
    complaint as a revenge tactic is not supported by the evidence. The family
    business broke up in 2011. VC did not file her complaint with the Guelph police
    until 2014.

Based on my overall review of AMs testimony,
    I accept her evidence regarding the acoustics of the house.

[14]

TC submits that the trial judge did not address
    the significance of AMs evidence, which was not rejected, and which directly
    contradicts VC in the following areas:

(a) VC testified that she told AM that TC
    sexually abused her. AM, on the other hand, testified that VC never disclosed
    that TC sexually abused her;

(b) VC testified that AM revealed to her that TC
    was "very, very forceful in the bedroom" towards her. AM testified
    that this conversation never happened and that she was never subjected to
    violence in the bedroom by TC;

(c) VC testified that she wanted nothing to do
    with TC since the time she finished university in 2006. However, AM testified that
    VC invited TC and AM to her wedding in 2006 and asked that they be witnesses
    and further that VC sent TC and AM two Facebook messages during this period;
    and

(d) VC testified that her parents removed the
    door from her room just before she moved out because she would slam it. AM
    testified that there was a door on the frame.

[15]

TC advances two primary arguments regarding the
    trial judges treatment of AMs evidence. First, he submits that the failure to
    consider evidence relevant to a material issue constitutes a misapprehension of
    the evidence. Second, TC argues that because VC and AM provided two
    incompatible versions of events, neither of which were rejected, the trial
    judge was required to provide meaningful reasons as to how this conflict was
    resolved. His position is that she did not do this and that the failure to
    articulate how credibility concerns should be resolved constitutes a reversible
    error.

[16]

We do not give effect to

either of these
    submissions.

[17]

The Crown concedes that the trial judge could
    have done a better job in analyzing AMs testimony. However, the Crown submits
    that

it is inherent in the trial judges acceptance of VCs evidence,
    and her finding that inconsistencies in VCs evidence mostly related to
    peripheral issues, that
,
to the extent AMs evidence conflicted with
    VCs, the trial judge either did not accept it or did not consider it material
    to the central issues at the trial or detrimental to VCs credibility, and was
    not left in a reasonable doubt on the whole of the evidence. We accept that
    submission.

[18]

It is also essential to carefully review the
    evidence in issue and place it in the context of all of the evidence at trial. When
    that exercise is undertaken, it is clear that the trial judge did not fail to
    consider evidence relevant to a material issue.

[19]

The evidence regarding the wedding invitation
    and the Facebook message
s
after the alleged abuse was of marginal assistance.
    Similarly, AM testified that she was only in VCs bedroom on a few occasions, so
    her evidence regarding whether VCs bed smelled and whether VCs bedroom door
    was in place was not particularly helpful in assessing VCs credibility and
    reliability.

[20]

At first blush, the evidence regarding VCs
    disclosure of the alleged abuse, and the conversation regarding TC being
    aggressive with AM, are more relevant. However, the evidence regarding the
    disclosure of the abuse was quite limited. VC testified that, in the context of
    a discussion about AM's treatment by her former boyfriends, she told AM that
    she had been abused when she was younger. She described the conversation after
    that revelation as follows:

And she said you were abused? By who your
    brother? And I just, you know, nodded or said yes and I didn't give her any
    detail as to anything. I had mentioned that he had had another incident as well
    but again didn't give any detail or real information. Just kind of in passing.
    It was more brought up in a note of kind of reassurance that, you know, there's
     I was hoping it would maybe open something up but it didn't. It just got
    passed along and continued talking about, about her issues and never spoke of
    it again.

Later in her testimony, VC confirmed
    that it would have been clear to AM that she was saying that TC had sexually
    abused her in the past.

[21]

It is evident from this testimony that the
    revelation consisted of a very brief reference during a discussion about AMs
    experiences with past boyfriends that were abusive or that would hit her  or
    yell at her and that kind of stuff. VC did not offer details, and AM did not
    ask for any. It may have been preferable for the trial judge to deal with this testimony
    specifically in her reasons. However, from her summary of the evidence, she
    clearly was aware of the evidence but did not consider it sufficiently material
    to merit further comment.  We are not satisfied that this evidence was of
    sufficient importance that the trial judge was required to address it.

[22]

We reach the same conclusion regarding the
    alleged discussion between AM and VC about TC being violent in the bedroom. According
    to VC, she received a call from AM out of the blue wherein AM told her that TC
    had been violent in the bedroom, and AM asked her for details regarding what
    happened to her and the other incident she had previously mentioned. VC said
    that she told AM that she was not comfortable discussing what happened to her
    and that she had no details regarding the other incident. She suggested AM and
    TC undergo marriage counselling. This was a conversation that is alleged to
    have taken place around 2007, years after the alleged abuse. Again, the trial
    judge was alive to this evidence.  However, in our view, she was not obliged to
    deal with this evidentiary discrepancy in her reasons as it was not important
    to her determination regarding VCs credibility and the reliability of her
    evidence
.


[23]

Overall, AMs evidence must be placed in its
    proper context in the case. AM was not a resident of the family home, and in
    her very brief testimony, she was not able to shed much light on whether TC had
    sexually abused VC. The trial judges reasons make clear that she was alert to
    the main inconsistencies between AM and VCs testimony. It was not an error for
    the trial judge to assign these inconsistencies less significance than the
    defence would. Therefore, we do not give effect to this ground of appeal.

[24]

We also do not give effect to the related
    argument that the trial judge provided insufficient reasons regarding AMs
    evidence. TC can only succeed on this ground of appeal if he can establish that
    the reasons are so deficient that meaningful appellate review is foreclosed:
R.
    v. Vlaski
, 2019 ONCA 927, at para. 9, leave to appeal refused, [2020]
    S.C.C.A. No. 78;
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at
    para. 10. We are not satisfied that TC has met his onus in this regard. In our view,
    the reasons do not foreclose appellate review. Rather, they explain the basis
    upon which the trial judge convicted TC. The trial judge describes why she
    believed VC and disbelieved her parents. These were the critical witnesses at
    trial, in contrast to AM, whose brief testimony was of marginal assistance.

[25]

TCs real complaint is not that the reasons are
    so deficient that this court cannot review them, but that the trial judge did
    not explicitly deal with all of the areas of evidence that he believes she
    should have. It is well established that it is within the discretion of a trial
    judge to determine what areas of the evidence should be included in his or her
    reasons:
R. v. A.A.
, 2015 ONCA 558, 337 O.A.C. 20, at para. 120;
Vuradin
,
    at para. 17. A trial judge is also not obliged to reconcile every frailty in
    the evidence: see
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at
    paras. 55-56. As explained above, the areas that were not included in the
    reasons were of limited importance, and the fact that the trial judge did not
    reference them in her reasons does not render her reasons deficient.

(2)

Uneven Scrutiny

[26]

TC submits that the trial judge subjected the
    evidence to uneven scrutiny. Specifically, he argues that
VCs evidence
    was approached with a relaxed, forgiving, and sometimes circular assessment. In
    contrast, it is submitted that the defence-led evidence was scrutinized more
    vigorously or not properly considered.

[27]

The basic
principles underlying an uneven
    scrutiny
ground
of
appeal were
summarized
by
Watt J.A.
in
R.
    v. Radcliffe
,
2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 23 to 26,
    leave to appeal refused, [2017] S.C.C.A. No. 274,
as

follows
:

First, as the appellant recognizes, this is a
    difficult argument to make successfully. The reasons are twofold. Credibility
    findings are the province of the trial judge. They attract significant
    appellate deference. And appellate courts invariably view this argument with
    skepticism, seeing it as little more and nothing less than a thinly-veneered
    invitation to re-assess the trial judge's credibility determinations and to
    re-try the case on an arid, printed record:
R. v. Howe
(2005), 2005
    CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59;
R. v.
    George
, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.

Second, to succeed on an uneven scrutiny
    argument, an appellant must do more than show that a different trial judge
    assigned the same task on the same evidence could have assessed credibility
    differently. Nor is it enough to show that the trial judge failed to say
    something she or he could have said in assessing credibility or gauging the
    reliability of evidence:
Howe
, at para. 59.

Third, to succeed on the argument advanced
    here, the appellant must point to something, whether in the reasons of the
    trial judge or elsewhere in the trial record, that makes it clear that the
    trial judge
actually
applied different standards of scrutiny in
    assessing the evidence of the appellant and complainant:
Howe
, at para.
    59;
George
, at para. 36.

Fourth, in the
    absence of palpable and overriding error, there being no claim of unreasonable
    verdict, we are disentitled to reassess and reweigh evidence:
George
, at
    para. 35;
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

[28]

Applying this jurisprudence to the case at bar, we
    would not give effect to this ground of appeal. TC points to multiple examples
    that he argues demonstrate uneven scrutiny. Indeed, virtually every aspect of
    the trial judges reasons is relied on in support of this argument. In our
    view, this is really an invitation to re-try the case. Moreover, as will next
    be discussed, the arguments advanced in support of this ground of appeal are
    meritless.

[29]

The first alleged example of uneven scrutiny is
    that the trial judge dismissed the significance of new evidence arising at
    trial concerning anal penetration, the fact that TC opened VCs vaginal lips
    when he first assaulted her, and other matters, including odours in the home.
    We reject this argument. The trial judge was not concerned about this new
    evidence because, as she explained in her reasons, at para. 56:

The Defence submits
    that new details arose during VCs testimony at trial. It may be so; however,
    VC provided explanations for these new details. She explained that she was in
    the process of her recovery and seeking treatment for her issues and was not
    comfortable at first discussing all the details. However, VC explained that as
    she discussed more about the sexual assaults, more details came back to her.
    Lastly, as stated by the Crown, VC provided additional details during her
    testimony at this trial because she was asked more questions and more details
    were elicited. This is supported by the transcripts of her police interview
    dated February 25, 2014, and the Preliminary Inquiry hearing transcript dated
    April 4, 2017. An absence of detail is not an inconsistency.

[30]

This was a finding open to the trial judge and
    is not an example of uneven scrutiny.

[31]

TC next argues that the trial judge failed to
    deal with inconsistencies between VCs statements to the police and the details
    of the abuse in her testimony. We reject this argument. The trial judge
    specifically noted these inconsistencies and found that they were understandable
    given the time that had transpired since the assaults and the scope of the
    alleged abuse. In any event, VCs precise age when she was subjected to forced
    intercourse or when her brother defecated in her mouth was not critical.

[32]

As another example of uneven scrutiny, TC points
    to the trial judges treatment of AM's evidence that VC sent TC or AM two
    Facebook messages at a point when VC said she wanted nothing to do with TC. We
    do not accept that argument. The intended recipient of one of the messages was
    unclear. In any event, this is another example of evidence that the trial judge
    concluded was peripheral, as she was entitled to do. The trial judge considered
    the alleged inconsistency between VCs testimony and the two Facebook posts,
    and it is apparent she found these inconsistencies, like the others, were not
    significant. This argument amounts to nothing more than a complaint that the
    trial judge failed to say something she was permitted  but not required  to
    say in her credibility assessment. That does not constitute uneven scrutiny.

[33]

The next argument made in support of this ground
    of appeal is that the trial judge erred by relying on CC's rejected evidence in
    assessing JC's credibility. We disagree. The areas of conflict between CC and
    JCs evidence related to issues such as whether their children played together
    in the basement, whether JC slept with a sound machine, and whether she had
    cancer while pregnant with VC. VC's evidence supported CC's evidence on those
    areas. It was not uneven scrutiny for the trial judge to accept CCs evidence
    where it was consistent with VCs evidence.

[34]

TC alleges that the trial judge engaged in
    circular reasoning by excusing inconsistencies in VCs testimony on the basis
    that years of abuse would make it difficult to recall certain details
    accurately. TCs guilt was allegedly used to neutralize problems with VCs
    evidence, making her evidence strong enough to establish TCs guilt. We
    disagree. In our view, it is clear that the trial judge found VC sufficiently
    credible and reliable for reasons unrelated to any assumption of guilt. The
    trial judge simply acknowledged that one might expect the kinds of minor
    inconsistencies identified by TC if the allegations were true, given the nature
    and duration of the alleged offences, and so the inconsistencies were not determinative
    of VCs credibility or reliability.

[35]

TC submits that the trial judges treatment of
    the evidence of VCs pediatrician also demonstrates uneven scrutiny. He notes
    that the trial judge used the fact that there was no note in the doctors file
    about sexual abuse to undermine JCs credibility because JC testified that she
    brought VC to her pediatrician for a visit to see if VC had been sexually
    assaulted. In contrast, the trial judge did not reference the fact that there
    was no note in the doctor's file about yeast infections even though VC gave
    evidence that she went to the doctors office because she had regular yeast infections.
    This is not an example of uneven scrutiny. The evidence regarding whether the
    doctor had been told about potential sexual abuse was vital because it was
    contrary to clear evidence from JC that she brought VC to her pediatrician for
    a visit to see if VC had been sexually assaulted. In contrast, it was unclear
    from VCs evidence which doctor she visited to address the yeast infections.

[36]

As part of this ground of appeal, TC says that
    the trial judge made improper use of the transcripts filed as exhibits at trial
    in her credibility analysis of VC and CC because only portions of the transcripts
    put to VC and CC were made exhibits. TC has failed to particularize this
    allegation. The trial judge made no reference to portions of the transcripts
    that were not exhibits. She is presumed to know the law and what is
    impermissible to rely on in writing her reasons. Therefore, we see no merit in
    this submission.

[37]

Finally, TC submits that the trial judges
    reference in her credibility assessment of JC to the timing of when JC had
    cancer is also an instance of uneven scrutiny. We disagree. The trial judge was
    entitled to rely on this evidence as part of her consideration of JCs credibility
    and her alleged animus toward VC. JC's cancer surgery's timing, in relation to her
    pregnancy with VC, was connected at trial to VCs allegation that, on several
    occasions, JC yelled at VC that she should have just aborted her.

IV.

Disposition

[38]

For the foregoing reasons, the appeal is
    dismissed.

S.E. Pepall J.A.

C.W. Hourigan J.A.

L.B. Roberts J.A.


