



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    that could identify the complainant or a witness shall not be published in any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. D.C., 2017 ONCA 483

DATE: 20170616

DOCKET: C57786

Feldman, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D. C.

Appellant

Paul Alexander, for the appellant

Megan Stephens, for the respondent

Heard and released orally: June 1, 2017

On appeal from the conviction entered on February 6, 2013
    and the sentence imposed on May 2, 2013 by Justice Howard I. Chisvin of the Ontario
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of four counts of sexual interference and
    four counts of sexual assault of his daughter, from ages 11 to 14. The four
    counts of sexual assault were stayed pursuant to
R. v. Kienapple
, [1975] 1 S.C.R. 729
. He was sentenced
    to 18 months in addition to pre-trial custody. The appellant appeals his
    convictions on two grounds: 1) his s. 11(b)
Charter
right was infringed
    due to unreasonable delay in completing the trial; 2) the trial judge erred in
    his analysis of the credibility of the complainant by: reversing the burden of
    proof, misusing the finding of no motive to fabricate, and by misapprehending
    some of the evidence on that issue.

(1)

Unreasonable delay

[2]

The trial was completed in 2013 but is now governed by the decision of
    the Supreme Court Canada in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R.
    631. The trial was held in the Ontario Court of Justice so that the presumptive
    ceiling to verdict is 18 months. Although this case took just under 36 months
    to complete to verdict, on this appeal, counsel for the appellant fairly
    submitted that the appeal turns on the characterization of the 11-month
    adjournment of the trial from June 2011 to May 2012. He also fairly conceded
    that some of that time could be attributed to the defence but that the rest was
    institutional delay. The Crowns position is that the entire adjournment period
    is attributable to the defence. We agree with that submission.

[3]

The adjournment was required because defence counsel at trial did not
    comply with s. 276.1 of the
Criminal Code
by deciding not to bring an
    application in writing to cross-examine the complainant on an incident of
    alleged prior sexual activity (in this case, another assault). The Crown sought
    to tender the video statement of the complainant under s. 715.1 of the
Code
,
    but with the alleged sexual assault incident edited out. Defence objected and
    took the position that the Crown was required to justify the editing. Although
    Crown counsel had given defence counsel written notice asking counsel to bring
    the necessary application, counsel did not do so, and the issue was addressed
    at the opening of trial and led to the need to adjourn.

[4]

As the time set for the trial was only two days, when the adjournment
    was needed, the Crown sought both a date for the application as well as a
    separate four day trial period. That four day period could not be given by the
    court until the following May.

[5]

We agree with Crown counsel on the appeal that the defence position at
    trial in June 2011 was frivolous, as a s. 276 application was required, as
    subsequently ruled by the trial judge. In para. 63 of
Jordan
,
the Supreme Court identifies taking
    frivolous positions as conduct by the defence that is defence delay that will
    be subtracted from the presumptive ceiling. As a result, we find there was no
    s. 11(b) breach based on
Jordan
. We similarly reject the submission
    that it was an error by the trial judge in the s. 11(b) analysis he conducted under
R. v. Morin
,

[1992] 1 S.C.R. 771, not to characterize the 11-month
    adjournment as institutional delay.

(2)

The credibility findings of the trial judge

[6]

We also reject the submission that the trial judge erred in his
    credibility analysis. The objection on appeal is based on the structure of the
    trial judges reasons. The appellant called only one witness who did not
    testify as to the events of the alleged sexual assaults. Therefore the only
    witness on that issue was the complainant.

[7]

The trial judge reviewed her evidence and he identified some
    inconsistencies, but found that they were not significant enough to make her
    unbelievable and not credible. He then found that her credibility was enhanced by
    the absence of a motive to fabricate. It was not in her interest to fabricate the
    allegations because the result of that could have been that she would no longer
    be able to live at her fathers home in Stouffville and might have to return to
    live either with her mother, who was homeless, or to go into foster care.

[8]

We see no error in the trial judges approach. As Doherty J.A. stated in
R. v. Batte
(2000), 49 O.R. (3d) 321 (C.A.) at para. 120, absence of
    motive to fabricate is a factor that can be taken into account in assessing
    credibility. In this case there was also no error as in
R. v. L.L.
, 2009 ONCA 413, 96 O.R. (3d) 412
, where
    the accused was asked to speculate on the motive to fabricate. Nor did the
    trial judge misapprehend the evidence regarding the complainants feelings
    about her life in Stouffville and the alternatives open to her. His findings
    and inferences were supported by the evidence.

[9]

Finally, the approach of the trial judge did not reverse the burden of
    proof. He accepted the complainants un-contradicted evidence about the sexual
    assaults and determined that he believed her. His reasons disclose no error.

[10]

The
    appeal is therefore dismissed.

K. Feldman J.A.

G. Pardu J.A.

M.L.
    Benotto J.A.


