



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. G.B., 2021 ONCA 675

DATE: 20210928

DOCKET: C68235

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.B.

Appellant

Mark Halfyard, for the appellant

Gregory Furmaniuk, for the respondent

Heard: September 24, 2021 by
    video conference

On appeal from the convictions entered
    on August 2, 2019 by Justice Jocelyn Speyer of the Superior Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant was convicted of sexual assault,
    sexual interference, and invitation to sexual touching, all in relation to his
    granddaughter. The appellant was sentenced to four years imprisonment. He
    appeals his convictions.

[2]

The victim was 25 years old at the time of
    trial. She testified about what happened to her between 2000 and 2004, when she
    was 7 to 11 years old.

[3]

The victims parents were incapable of providing
    a stable environment for her and her siblings. Consequently, the children often
    stayed with the appellant and his wife. By all accounts, aside from the abuse, the
    victim and the appellant shared a good relationship when she was a child. Since
    then, the appellant has provided for her financially.

[4]

But there was another side to their
    relationship. The victim described a number of sexual incidents that occurred
    in the appellants home and in his car. The appellant licked the victims
    vagina, rubbed his penis outside her vagina, put his penis in her mouth, and
    penetrated her vagina. These incidents stopped when the victim started
    menstruating at age 11 or 12.

[5]

The victim said that she came forward with her
    allegations because: (a) she was aware of an incident where the appellant
    propositioned and then sexually assaulted her brothers former girlfriend; and
    (b) she was concerned that the appellant might be abusing her younger sister.
    The victim went to the Childrens Aid Society, hoping it would result in her
    sister being removed from the appellants home. The matter was referred to the
    police.

[6]

The appellant testified and denied the
    allegations. He said that the victim was very upset with him a week before she
    made the allegations because he had refused to lend her money to purchase a new
    car.

[7]

In thorough reasons for judgment, the trial
    judge rejected the appellants evidence. She was satisfied beyond a reasonable
    doubt that the appellant sexually abused the victim in the manner that she
    described.

[8]

The appellant submits that the trial judge erred
    in how she addressed the question of whether the victim had a motive to
    fabricate the allegations, thereby requiring a new trial. We disagree.

[9]

The car loan motive was put in play by the
    appellant. The appellant and the victim agreed that the appellant told her that,
    if she could pay all of her own bills at her new accommodation, he would help
    her buy a new car the following year. Their evidence, however, diverged as to
    her reaction. The victim testified that the proposal made sense, was logical
    and that she was fine with it. The appellant said the victim was pissed and
    walked away from him.

[10]

The trial judge rejected the appellants
    evidence on this issue. She said: While the defendant is under no obligation
    to explain why the complainant would fabricate the allegations, the manner in
    which he described the complainants reaction to his refusal of her request for
    a loan appeared to me to be an effort to manufacture a motive for the
    complainant to lie.

[11]

The trial judge also rejected the appellants
    account of how he reacted upon hearing that the victim was pregnant when she
    was 18. She said it was their biggest argument and she moved out and went to
    live with her mother for a while. The appellant said he was happy to hear the
    news and was welcoming of the child. The trial judge rejected the appellants
    account concluding it was an effort on his part to portray himself in a
    favourable light. In combination with his evidence on the car loan, the trial
    judge rejected the appellants testimony denying the allegations.

[12]

The trial judge also addressed the issue of
    motive when considering the victims evidence:

The complainant was an impressive witness. She
    presented as forthright, and careful not to guess about things she did not
    remember. She was clear and articulate. She frankly acknowledged when she could
    not remember or did not know the answer to a question. Apart from the
    allegations and a few other things, her evidence was substantially corroborated
    by the evidence of the defendant, which confirms that she can reliably describe
    her circumstances as a child. She presented in the same thoughtful and
    deliberate manner in cross-examination as she did in her evidence in-chief.
She
    did not appear to hold any grudge against the defendant, and readily
    acknowledged all the good things he did for her. I find that it has been proven
    that she had no motive to lie. The evidence establishes that she knew that if
    she came forward her family, and in particular her children, would suffer as a
    result

For the most part, she kept her emotions in check when she
    testified, but could not hide her sadness when she talked about her loss of her
    relationship with her grandmother, and the support she received from her
    grandparents when things get rough for her. She seemed more upset by that than
    by what her grandfather did to her, which makes sense, given her circumstances,
    and the fact that she maintained a good relationship with him as a teenager and
    young adult.
[Emphasis added.]

[13]

The appellant submits that the trial judge erred
    in finding that there was a proven lack of motive, and by using this finding to
    bolster her credibility. Relatedly, the appellant submits that the trial judge
    erred in relying on the negative consequences to the victim as a result of
    making the allegations as an indication that she had no motive to fabricate.

[14]

We are not troubled by the manner in which the
    trial judge resolved the car loan issue. The appellant introduced this issue at
    trial. There was nothing inappropriate in doing so, but the trial judge, in
    turn, was required to address the issue. On her evaluation of the evidence, she
    found that it was not a viable motive. It was open to the trial judge to make
    this finding on the record before her. In doing so, she instructed herself that
    the appellant had no onus to prove a motive. Her finding is entitled to
    deference:
R. v. Barton
, 2019 SCC 33, [2019] 2 S.C.R. 579, at para.
    132.

[15]

It would have been sufficient had the trial
    judge left it at that. However, her finding is broader. As noted above, the
    trial judge said: She did not appear to hold any grudge against the defendant,
    and readily acknowledged all the good things he did for her. I find that it has
    been proven that she had no motive to lie.

[16]

In the former sentence, the trial judge did not
    find that the victim
did not
hold a grudge; she only held that it only
appeared
to look that way. This was a reasonable finding on the
    evidence.

[17]

The trial judges more categorical finding 
    she had no motive to lie  requires more scrutiny. If this was a reference to
    the car loan, for the reasons already given, it was unobjectionable. However,
    given that the trial judge went on to immediately comment on the consequences
    of the victim coming forward, she had no motive to lie assumes greater
    significance.

[18]

As this court has said in a number of recent
    decisions, trial judges must approach an apparent lack of motive to fabricate
    with great caution when assessing the credibility of a complainant: see
R.
    v. S.S.S.
, 2021 ONCA 552;
R. v. Ignacio
, 2021 ONCA 69, 400 C.C.C.
    (3d) 343;
R. v. Bartholomew
, 2019 ONCA 377, 375 C.C.C. (3d) 354. However,
    to the extent that the trial judge may have strayed into forbidden territory,
    we apply the curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
,
    R.S.C. 1985, c. C-46. She was careful not to impose a burden on the appellant.
    Nor can it be said that this factor overwhelmed the trial judges assessment of
    the victims credibility. It did not infect the rest of her careful reasons in
    which she explained in great detail why she accepted the evidence of the victim
    and found the appellant guilty beyond a reasonable doubt.

[19]

The appeal is dismissed.

David Watt J.A.

M.L. Benotto J.A.

Gary Trotter J.A.


