



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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. D.P., 2017 ONCA 263

DATE: 20170330

DOCKET: C60798

Doherty, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.P.

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Katherine Beaudoin, for the respondent

Heard:  March 22, 2017

On appeal from the conviction entered by Justice Haines
    of the Superior Court of Justice, dated June 16, 2015.

By
    the Court:

[1]

The appellant was convicted of three counts of sexual
    assault and related charges involving the alleged sexual abuse of his stepson,
    J.E.  The charges arose out of three incidents that, according to J.E.,
    occurred when he was nine or ten years old.  J.E. reported the allegations to
    the police about eight years later in July 2013.

[2]

The appellant testified.  He had a turbulent
    relationship with J.E.s mother.  He described J.E. as a very difficult child
    who had severe emotional and behavioural problems.  According to the appellant,
    J.E. often engaged in aggressive and dangerous conduct directed at his two
    younger brothers.  The appellant conceded that on occasion he became very angry
    with J.E. and hit him.  The appellant admitted using his belt to discipline
    J.E. on two occasions when, in the appellants opinion, J.E.s conduct toward
    his younger brothers was particularly egregious.

[3]

The appellant appeals his convictions only.

Were the verdicts unreasonable?

[4]


As often occurs in cases involving allegations of this
    kind, the outcome turned on the trial judges assessment of the credibility of
    J.E. and the appellant and his application of the reasonable doubt standard to
    those assessments.

[5]

There were many reasons to be concerned about J.E.s
    credibility, including a long criminal history, including offences involving
    dishonesty, drug abuse and a longstanding penchant for lying to authorities.  Despite
    these many problems, the trial judge ultimately believed J.E.

[6]

When an appellant alleges that a verdict based on a
    credibility assessment is unreasonable, this court must, to a limited extent, make
    its own assessment of the complainants credibility.  This court does so,
    however, bearing in mind the many advantages enjoyed by the trial judge when it
    comes to assessing credibility.

[7]

We cannot say that the verdicts are unreasonable in
    that no reasonable trier of fact would have believed J.E.s evidence.  Nothing
    in his description of the relevant events is inherently incredible.  His
    criminal background, drug abuse, and mendacity were obviously relevant to his
    credibility.  In considering what to make of the negative features of J.E.s
    background, however, the trial judge had to have regard to the evidence that J.E.s
    anti-social behaviour was potentially explained in part by his most unfortunate
    childhood.  On his evidence, his mistreatment at the hands of the appellant was
    central to that unfortunate childhood.

[8]

A trier of fact, in deciding what impact J.E.s prior
    conduct should have on his credibility, would have to consider the extent to
    which that behaviour may have been the product of mistreatment at the hands of
    the appellant.  We cannot say that a proper appreciation of J.E.s background
    would inevitably lead a reasonable trier of fact to conclude that the
    allegations of sexual abuse made by J.E. were not credible.

[9]

In any event, J.E.s evidence did not stand alone.  Two
    witnesses described the relationship between the appellant and J.E.  Both testified
    that when J.E. misbehaved, the appellant reacted very angrily, if not
    irrationally.  He often resorted to physical violence against J.E.  Both
    witnesses indicated that J.E. was singled out for particularly harsh treatment
    by the appellant.  Furthermore, on the evidence of these two witnesses, the appellant
    not only physically abused J.E., he emotionally abused him by denigrating and
    humiliating him.

[10]

The evidence from these two witnesses did not offer
    direct support for J.E.s allegations of sexual abuse.  Their evidence did,
    however, confirm J.E.s evidence in the sense that it described a relationship
    between J.E. and the appellant and an extreme animus toward J.E. by the
    appellant that was entirely consistent with J.E.s descriptions of the
    appellants assaults.

[11]

It cannot be said that no reasonable
    trier of fact, acting judicially, would have convicted the appellant on the
    evidence adduced at trial.  The argument that the verdicts are unreasonable
    fails.

The reasons for judgment

[12]

The remaining arguments target specific aspects of the trial judges
    reasons that are relevant to his ultimate credibility assessments.  The
    appellant alleges a variety of errors.  In addressing these arguments, it is
    helpful, before turning to a close review of specific passages in the reasons
    said to reveal error, to step back and examine the reasons as a whole.  Reasons
    that reveal a full appreciation of the evidentiary record, the positions of the
    parties, and the issues to be determined, are much more likely to survive
    appellate review targeting alleged inadequacies in a specific sentence or
    passage than are reasons that are conclusory or perfunctory.

[13]

The reasons for judgment in this case offer a detailed review of the evidence,
    and a full examination of the arguments presented at trial.  Considered in the
    context of a case that turned entirely on credibility, the reasons offer a
    clear explanation for the verdicts arrived at by the trial judge.

[14]

The appellant submits the trial judge erred in failing to treat certain
    inconsistencies in J.E.s evidence as material to his credibility, but instead wrongly
    dismissed those inconsistencies as peripheral.  The trial judge considered
    several inconsistencies in J.E.s testimony.  He also outlined the defence
    arguments based on those inconsistencies and summarized the applicable law.  It
    was opened to the trial judge to conclude that many of the inconsistencies relied
    on by the defence were peripheral to the main allegations.  For example, the
    trial judge did not regard inconsistencies in J.E.s testimony concerning the presence
    of his mother in the home at the time of one or more of the assaults, as a significant
    inconsistency.  It was for the trial judge to assess the significance of that
    inconsistency.  We see nothing unreasonable in his characterization of the
    inconsistency as peripheral.

[15]

Counsel for the appellant emphasized two inconsistencies.  He argues
    that the trial judge did not adequately deal with J.E.s evidence that he, not
    only did not complain about the appellants conduct to his doctor or the CAS
    workers who questioned him about abuse, but instead reported a positive
    relationship with the appellant.

[16]

In his evidence, J.E. explained that he lied to the doctor and the CAS
    workers about the appellants abuse because he had been coached by the
    appellant about what he should say to the authorities and he feared retribution
    if he did not follow the appellants instructions.  It was open to the trial
    judge to accept this explanation for J.E.s statements to the doctor and the
    CAS workers.  The explanation rings trues in the face of the appellants
    admitted physical abuse of J.E., and the evidence of the independent witnesses describing
    the appellants violent temper and mistreatment of J.E.

[17]

Counsel attempted to persuade the court that the trial judge erred in
    accepting J.E.s explanation for lying to the CAS and the doctor about the
    abuse by referring the court to a passage from J.E.s cross-examination in
    which he stated that he was not as afraid of the appellant after the appellant
    and J.E.s mother were separated and J.E. was not living in the house.  Reference
    to this single passage does not support a claim that the trial judge failed to
    consider the evidence of J.E.s lies to the CAS and his doctor when assessing
    J.E.s credibility.  This passage, even if generously read, cannot negate
    J.E.s unequivocal assertion that he was afraid of the appellant and lied to
    the authorities to avoid the wrath of the appellant.

[18]

Counsel also argued that the trial judge failed to consider a significant
    inconsistency in J.E.s description of the assault involving the forced
    fellatio in his bedroom.  At the preliminary inquiry, J.E. had indicated that
    the appellant kicked and hit him before forcing him to engage in fellatio.  In
    his examination-in-chief at trial, J.E. made no mention of the kicking and
    hitting.  When confronted with the inconsistency in his cross-examination, J.E.
    adopted his preliminary inquiry statement, indicating that he had forgot to
    mention the physical violence in his evidence in-chief.

[19]

The trial judge accurately reviewed this part of the evidence.  He
    referred to J.E.s explanation and to the defence position.  He did not
    specifically indicate that he accepted J.E.s explanation for the inconsistency. 
    However, a fair reading of the reasons leaves no doubt that he accepted the
    explanation.

[20]

In considering the potential negative impact of this inconsistency on
    J.E.s credibility, one must bear in mind that J.E.s initial trial evidence
    was less damaging to the appellant than his statement under oath at the
    preliminary inquiry. This was not a case of a complainant adding damaging
    evidence each time he repeated the allegation.

[21]

The inconsistency between J.E.s evidence in-chief and his preliminary
    inquiry evidence was brought out during cross-examination.  J.E. adopted the
    more damaging evidence he had given at the preliminary inquiry.  The act of
    fellatio was obviously the focus of this particular allegation.  The trial
    judges finding that J.E. inadvertently left certain details out of his initial
    account at trial, although those details were included in a prior account given
    under oath, was not an unreasonable assessment.

[22]

The trial judge did not err in his treatment of the inconsistencies in
    J.E.s testimony.

Did the trial judge place undue reliance on
R. v.
    J.J.R.D.
?

[23]

The trial judge was alive to the Crowns burden of proof and the
    application of that burden in cases in which a complainant and an accused give
    diametrically opposed evidence of the relevant events.  The trial judge
    specifically referred to
R. v. W.(D.)
, [1991] 1 S.C.R. 742.  He
    appreciated that mere belief of J.E.s evidence, combined with a rejection of
    the appellants evidence, could not constitute proof beyond a reasonable doubt.

[24]

The trial judge ultimately concluded that the appellants evidence did
    not leave him with a reasonable doubt on the charges.  In coming to that
    conclusion, the trial judge acknowledged that there was no specific feature of
    the appellants evidence that caused him to reject his evidence.  Rather, his
    rejection was based on a considered and reasoned acceptance beyond a reasonable
    doubt of the truth of the conflicting credible evidence given by J.E. as
    supported by the evidence of the other two Crown witnesses.  The trial judge
    referred to
R. v. J.J.R.D.
, [2006] O.J. No. 4749.

[25]

Given the trial judges assessment of the evidence, the passage he quoted
    from
R. v. J.J.R.D
. had application to this case.  The trial judge
    made no error in convicting based on his considered and reasoned acceptance
    beyond a reasonable doubt of the evidence of J.E., despite his inability to
    point to any specific part of the appellants evidence that caused him to
    disbelieve the appellant.

Did the trial judge place undue reliance on demeanour
    evidence in accepting J.E.s testimony?

[26]

A witnesss demeanour is an appropriate consideration when assessing
    credibility.  Demeanour can, however, be misleading and should be factored into
    the credibility assessment with care.  There is always a danger that demeanour
    can be overemphasized by a trial judge or a jury.

[27]

This trial judge made a single reference to J.E.s demeanour, indicating
    that he did not detect any deceit or dishonesty in J.E.s demeanour during his
    testimony.  There is no suggestion in the reasons that the trial judge used
    J.E.s demeanour as a positive factor in assessing J.E.s credibility.  He
    merely referred to the absence of any appearance of deceit or dishonesty.  Even
    if the trial judge did use J.E.s demeanour to some extent in assessing credibility,
    there is no basis upon which to find that he put undue emphasis on J.E.s demeanour
    when assessing his credibility.

Did the trial judge err in equating J.E.s selective
    disclosure with delayed disclosure of the abuse?

[28]

J.E. did not complain to the police for many years about the appellants
    assaults.  When he went to the police, he first revealed two of the assaults
    and a few months later revealed the third.

[29]

The defence argued J.E.s selective disclosure provided yet another
    basis upon which to reject his evidence as incredible.  The trial judge
    referred to that argument and to
R. v. D.D.
, 2000 SCC 43, a case
    dealing with the significance of delayed disclosure in assessing credibility in
    sexual assault cases.

[30]

The trial judge concluded that J.E.s explanation for his delayed
    disclosure and for his failure to disclose all of the assaults in his first
    interview with the police was perfectly plausible.  The trial judge observed:

The decision to disclose is a difficult one that can be very
    painful for victims.  It cannot be surprising that it would take [J.E.] more
    than one occasion to shed a burden that had been weighing on him for years.

[31]

We see no error in the trial judges assessment of the impact of J.E.s
    delayed and bifurcated disclosure on his credibility.  Nor do we accept the
    argument that there is a fundamental difference between delayed disclosure and
    piecemeal disclosure of prior sexual abuse.  The comments in
R. v. D.D.
are potentially applicable to both, depending of course on the circumstances
    revealed by the evidence in any particular case.

Conclusion

[32]

The appeal is dismissed.

Released:  DD  MAR 30 2017

Doherty J.A.
Grant Huscroft J.A.
Bradley W. Miller J.A.


