



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    that could identify the complainant or a witness shall not be published in any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. G.P., 2014 ONCA 39

DATE: 20140117

DOCKET: C55654

Rosenberg, Rouleau and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.P.

Appellant

Stephen F. Gehl, for the appellant

Mabel Lai, for the respondent

Heard: November 29, 2013

On appeal from the conviction entered on September 29,
    2011, and the sentence imposed on March 28, 2012 by Justice R.J. Haines of the Superior
    Court of Justice, sitting without a jury.

Rouleau J.A.:

[1]

This appeal was heard on November 29, 2013 and was dismissed with
    reasons to follow. These are those reasons.

OVERVIEW

[2]

The appellant was convicted of historical sexual offences  incest and
    sexual assault  against his biological daughter R.P. and son L.P. He was
    sentenced to eight years imprisonment. At trial, the sole issue was
    credibility. In thorough and detailed reasons, the trial judge explained why he
    accepted the evidence of the complainants R.P. and L.P., rejected the defence
    evidence and was not left with a reasonable doubt.

[3]

The appellant appeals both conviction and sentence. He argues that the
    trial judge gave insufficient reasons, misapprehended the evidence, rendered
    unreasonable verdicts and imposed an unfit sentence.

[4]

For the reasons that follow, the appeal is dismissed.

FACTS

[5]

In the early 1990s, when R.P. was about five or six years old, till she
    was about 12 years old, she was sexually assaulted by the appellant. The
    assaults started with hugging and kissing, progressing gradually to fellatio
    and vaginal intercourse. By the end, the sexual activity would occur about
    three times a week. The assaults ended when R.P. began to menstruate.

[6]

With respect to L.P., the sexual assaults started with the appellant
    touching L.P.s penis with his hands and mouth and L.P. performing oral sex on
    the appellant. It progressed to anal sex with L.P. penetrating the appellant
    and vice versa. By the time it came to an end, when L.P. was about 12, sexual
    activity had become pretty much a daily routine.

[7]

In 1992, the appellant pled guilty to sexual interference and invitation
    to sexual touching in relation to a young boy who lived in the neighbourhood.
    The appellant received a sentence of nine months custody followed by two years
    probation, during which time he had limited contact with R.P. and L.P. During
    the period of imprisonment and probation, no incidents of sexual assault
    involving R.P. and L.P. are reported. The evidence about the 1992 conviction
    appears to have been admitted to explain some of the incidents, especially the
    disclosure by R.P. and a possible motive to fabricate by R.P.

[8]

The appellant testified at his trial and denied any impropriety. The
    trial judge rejected the appellants evidence finding that there were
    significant inconsistencies in his evidence and that certain aspects of that
    evidence were improbable, contrived and unconvincing. The trial judge also
    rejected the other defence evidence. That evidence consisted of testimony from the
    appellants spouse, another of the appellants daughters, as well as other
    relatives and friends. The trial judge found that the evidence of the
    appellants spouse was simply not credible. As to the evidence of the other
    defence witnesses, the trial judge determined that it was either unreliable or
    provided little assistance to resolving the issues at trial.

[9]

Applying the analysis prescribed by
W.(D.)
, the trial judge
    concluded that the defence evidence when considered in the context of all the
    evidence, does not raise a reasonable doubt.

[10]

The
    trial judge then considered the Crowns evidence. The trial judge found both
    complainants to be credible, accepted their evidence and convicted the
    appellant.

ISSUES

[11]

The
    appellant argues that, although the trial judge gave extensive reasons, he did
    not resolve significant conflicts in the evidence of the complainants,
    misapprehended evidence and came to an unreasonable decision. In his
    submissions, the appellant focussed on the six problems with the complainants
    evidence. The appellant argues that these problems, either individually or in
    combination, justify quashing the convictions or, in the alternative, ordering
    a new trial. The problems raised by the appellant are as follows:

1.

R.P.s desire to
    separate the appellant from his grandchildren;

2.

R.P.s
    description of her most dominant memory of sexual abuse;

3.

R.P.s
    uncertainty about whether the appellants spouse witnessed the sexual abuse;

4.

R.P and L.Ps differing
    recollections about witnessing each others sexual abuse;

5.

The conflicting
    evidence between L.P. and the appellants spouse as to whether the appellants spouse
    witnessed the sexual abuse;

6.

R.P.s alleged
    blackmail of L.P. and L.P.s initial denial that the appellant had sexually
    abused him.

ANALYSIS

[12]

There
    were a number of inconsistencies in the testimony of both complainants. Their
    recollection of certain events varied as between them and, in some cases, was
    at variance with the evidence of their mother and other relatives and friends
    who testified for the defence. However, it is apparent from the trial judges
    reasons that the trial judge was alert to these problems in the evidence. He
    dealt with them and, in the end, found both complainants to be truthful and their
    testimony and consistent on the critical evidence establishing the offences.

[13]

The
    record discloses that the complainants had had a difficult adolescence and had
    resorted to the use of illegal drugs at various points. R.P. went through
    therapy to assist her in dealing with the issues and, as noted by the trial
    judge, has coped remarkably well. L.P., however, did not manage as well
    following the abuse.

[14]

L.P.
    initially denied to the authorities that he had suffered any abuse. Ultimately,
    however, with R.P. pressing on with the allegations, L.P. decided to come
    forward and he reported the abuse to police. L.P. explained that at first he simply
    wanted to forget and not become involved. Later however, he found the courage
    to come forward and tell the truth.

[15]

In
    a case such as this one, the trial judge is in the best position to assess the
    credibility of the complainants, the defendant and the other trial witnesses. Review
    of the trial judges credibility assessments is limited and informed by the
    special position of the trier of fact on matters of credibility:
R v. W.
    (R.)
, [1992] 2 S.C.R. 122, at para. 21
.
    His findings are entitled to deference.

[16]

The
    appeal centers almost exclusively on the complainants evidence. As I will
    explain, the trial judge addressed the concerns with that evidence raised on
    appeal and his conclusions are reasonable and supported by record.

1.       R.P.s desire to separate the appellant from his
    grandchildren

[17]

The
    appellant argues that R.Ps allegations are false and that she was motivated by
    hatred towards the appellant. The appellant submits that she lied about the
    allegations in order to punish the appellant by separating him from his
    grandchildren. The appellant argues that the trial judge did not deal with
    R.P.s motive to lie, and this puts into doubt his conclusion as to the
    credibility of R.P.

[18]

R.P.
    testified that before any complaint was made to the police, she had become
    concerned that the appellant not have contact with his grandchildren, one of
    whom was living with the appellant. R.P. therefore told the Childrens Aid
    Society (CAS) that the appellant was a convicted sex offender. When the CAS
    told R.P. that the 1992 conviction was too dated to justify the appellants
    removal from the home, the CAS went on to ask R.P. if she was aware of any
    other instances. In response, R.P. disclosed to the CAS the sexual assaults
    committed against her by the appellant. As a result, the appellant was removed
    from the home in 2010. R.P. later reported the offences to the police resulting
    in charges being laid.

[19]

I
    do not share the appellants concern. R.P.s motive was clear from the
    evidence. R.P. readily acknowledged that she wanted to keep the appellant away
    from his grandchildren. The sequence of events, however, shows that the laying
    of charges was not foremost on R.P.s mind. R.P. was reluctant to disclose the
    allegations and her explanation of why she disclosed the information to the CAS
    and later to the police is logical and consistent with the allegations being
    truthful. R.P.s concern that the children be protected from the appellant and
    that they not suffer the same abuse she had suffered is both a logical and a
    reasonable explanation for her reporting of the incidents.

[20]

Whether
    and to what extent R.P. may have been motivated by hatred or a desire to punish
    rather than a concern for the welfare of the grandchildren did not, in the
    circumstances, have to be specifically addressed by the trial judge.

2.       R.P.s description of her most dominant memory of
    sexual abuse

[21]

In
    her evidence-in-chief, R.P. described how sexual activity with the appellant
    escalated over time. For the first two years it went from hugging, kissing to
    touching his penis and fellatio. She explained that it was not until the
    appellant completed his sentence in relation to the 1992 conviction for sexual
    interference and invitation to sexual touching that the sexual activity with
    R.P. escalated into full blown intercourse.

[22]

In
    cross-examination, however, R.P. was asked about the sexual abuse and,
    specifically, the very first incident of abuse that she remembered. R.P.s
    response was I would have to go with being in the room  when it actually
    turned into the sexual intercourse . R.P. then described this incident in
    considerable detail. When the appellants counsel asked her I want to go back
    to make sure you just understood what I just asked you  Is that the very first
    event of sexual abuse you remember? R.P. responded:

This is the one that is very dominant in my memory that I would
    consider actual sexual abuse. I will take the hugging and kissing as actual
    love. You know, the way a parent is supposed to interact with your child. Its
    not like we french kissed. It was how I would think you would interact with
    your child. Like, it wasnt  so thats the most dominant memory for me, yeah.

[23]

In
    re-examination, R.P. explained as follows:

I may not have answered the question appropriately. If you want
    to know, like, the very first  he asked me what, what my memory was, so my
    memory goes to my dominant memory. Its not what led up to it. So, yes, there
    were hand-jobs before, its just not, to me  sex is a big deal. Okay, its the
    sex that matters to me. Its the sex that brings back all my flash backs.
    Thats the part that Im having a really hard time dealing with in my own life
    moving forward.

[24]

The
    trial judge reviewed this evidence and did not see that it was indicative of
    un-truthfulness. The trial judge explained that the evidence disclosed that
    R.P. had difficulty being intimate with adult partners because of the sexual
    abuse she suffered and:

[this] is the aspect of the abuse that haunts her. I do not
    find it surprising that she would focus on it as she did. I do not, therefore,
    see that this part of her evidence diminishes the veracity of the balance of
    her testimony in any view.

[25]

The
    appellant argues, as he did at trial, that this explanation is ridiculous and that
    the trial judge ought to have found that it shows R.P. to be a liar who
    concocted the allegations. In the appellants submission, the trial judge erred
    in accepting this explanation.

[26]

I
    do not consider R.P.s answer to be as problematic as suggested by the
    appellant. R.P.s answer must be viewed in context. It came towards the end of
    R.P.s cross-examination, after she had fully explained the events. It is
    apparent from the series of questions and answers that the answer from R.P. at
    issue was in response to a different question than the one she was asked. She
    was not being evasive or untruthful. Rather, she was explaining what she
    considered to be the true sexual abuse that has haunted her in ensuing years.
    The trial judge was entitled to accept her explanation and to view the exchange
    as being a little more nuanced than the appellant alleges.

3.       R.P.s
    uncertainty about whether the appellants spouse witnessed the abuse

[27]

R.Ps
    friend testified that R.P. had told her that her mother had walked in while the
    appellant was sexually assaulting R.P. In her testimony, R.P. repeated this allegation
    but added that she was uncertain and that it may have been a dream. R.P. acknowledged
    that she had not told her friend that this recollection might have been a dream
    and accepted counsels suggestion that she may have once believed it to be a
    true memory.

[28]

In
    cross-examination, R.P. explained:

I had said that I am not sure if it was a dream or reality,
    but I have a vivid memory of her walking in and walking out, but I dont know
    because my dreams are so realistic that, like, the flashbacks are so strong.

[29]

The
    trial judge found that R.P.s candid admission about the unreliability of this
    one memory did not taint the reliability of the rest of her evidence. R.P.
    clearly had concerns as to this particular memory, but was confident as to the
    seven years of sexual abuse she suffered.

[30]

The
    appellant argues that there was no basis in the evidence for the trial judges conclusion
    and that it was pure speculation and conjecture.

[31]

I
    disagree. The trial judge was in the best position to assess the reasonableness
    of R.P.s explanation. The trial judges reasons outline why he accepted R.P.s
    explanation. The appellant has not satisfied me that the trial judge erred in
    doing so.

4.       R.P.
    and L.P.s differing recollection about witnessing each others sexual abuse

[32]

R.P.
    recalled that L.P. had, on several occasions, witnessed the appellant having sexual
    contact with R.P. Those occasions had, according to R.P., been used as a model
    to teach L.P. how to perform sexual intercourse.

[33]

L.P.
    acknowledged that the appellant was always explaining sex to them but, as far
    as he could recall, he had not witnessed sexual contact between R.P. and the
    appellant.

[34]

The
    appellant argued at trial and argues again on appeal that this contradiction in
    the testimony of the complainants is glaring and sufficient to raise serious
    doubt as to the credibility of the complainants.

[35]

The
    trial judge agreed with the appellant that this represented a significant
    difference in the complainants testimony. He nonetheless accepted R.P.s
    version of events, reasoning that her memory was more detailed and reliable
    than L.P.s. To the trial judge, it was apparent that L.P. had pushed many
    painful memories associated with the abuse out of his mind. As a result, the
    trial judge did not find it surprising that L.P. did not recall witnessing the
    assaults on R.P. and did not consider that it detracted from the reliability of
    the balance of L.P.s testimony.

[36]

These
    conclusions were open to the trial judge and available on the evidence. The
    trial judges findings are owed deference and I see no basis to interfere.

5.       The
    conflict between L.P. and the appellants spouse as to whether the appellants spouse
    had witnessed the sexual abuse of L.P.

[37]

L.P.
    was firmly of the view that, on a few occasions, his mother had walked in on
    him and the appellant when the appellant was sexually abusing him. L.P.s mother
    denies ever having witnessed any such abuse.

[38]

The
    trial judge dealt with this conflict in the evidence by rejecting the evidence
    of the appellants spouse. In the appellants submission, however, there was
    insufficient justification for rejecting the evidence of the appellants spouse,
    and the trial judge ought to have rejected the evidence of L.P. instead.

[39]

Credibility
    findings are in the domain of the trial judge. The trial judge assessed the
    evidence of the appellants spouse and concluded that she was not a credible
    witness. The appellants spouse testified that, although the appellant was
    chronically unemployed and virtually always at home, he had never been left
    alone with either of the complainants for the many years that the abuse was
    alleged to have occurred. As he was entitled, the trial judge found this not to
    be credible and that it constituted a basis for rejecting the spouses evidence.
    The trial judge explained that, although she claimed not to be taking sides, it
    was apparent that she was doing her best to deflect potential responsibility
    for any of the abuse from herself. The trial judges finding of credibility is
    reasonable and I see no basis to interfere.

6.       R.P.s
    alleged blackmail of L.P. and L.P.s initial denials that the appellant had
    sexually abused him

[40]

Two
    of the defence witnesses testified that L.P. had told them that R.P. was
    blackmailing him by threatening to withhold access to his son unless he
    supported her allegations of abuse by the appellant. At the time, R.P. had applied
    to adopt L.P.s son. L.P. is also alleged to have told these two defence witnesses
    that he had never been assaulted by the appellant.

[41]

L.P.
    acknowledged that he had originally denied that any abuse had occurred but went
    on to explain why he later came forward with the truth. However, L.P. adamantly
    denied ever having been blackmailed by R.P. and denied ever having told the two
    defence witnesses of any blackmail.

[42]

The
    trial judge accepted L.P.s explanation as to why he had originally denied any
    abuse. The trial judge also considered the conflict in the evidence as to
    whether L.P. had told the witnesses about being blackmailed. He resolved the
    conflict by finding that it seems more likely that the prospect of blackmail
    was introduced into the conversation by someone else and eventually attributed
    to L.P. In any event, I accept L.P.s testimony that he never told anyone R.P.
    was blackmailing him.

[43]

The
    appellant argues that the trial judges explanations for accepting L.P.s
    testimony are without any evidentiary foundation.

[44]

In
    my view, it was open to the trial judge to accept L.P.s explanation and to
    conclude, as he did, that there had been no blackmail. The trial judge engaged
    in a reasoned analysis of L.P.s evidence on these points and found L.P. to be
    credible. Although the trial judges suggestion that the notion of L.P. being
    blackmailed may have been introduced into the conversation by someone else and
    eventually attributed to L.P. is, to an extent, speculative, it does not detract
    from his acceptance of L.P.s clear denials.

7.       Conclusion on the conviction appeal

[45]

In
    my view, therefore, the trial judge committed no error in his review of the
    evidence and of the applicable law. He made the necessary findings of fact and
    gave reasoned explanations for his findings of credibility. The appellant has
    neither shown that the trial judges findings and conclusions are in error, nor
    that the verdicts are unreasonable.

THE SENTENCE APPEAL

[46]

The
    appellant acknowledges that the sentence was within the range of sentences
    appropriate for offences such as these. The appellant was in a position of
    trust. The abuse was frequent and ongoing. Although there was no collateral
    physical violence, the appellants manipulation and ongoing abuse of the
    complainants left both complainants psychologically scarred. The appellant had previously
    served a custodial sentence on an earlier sexual assault and remained
    undeterred. As a result, I consider the trial judges determination that a
    global eight year sentence appropriate and that it reflects no error.

CONCLUSION

[47]

For
    these reasons, the appeal is dismissed and, although leave to appeal sentence
    is granted, the sentence appeal is also dismissed.

Paul Rouleau J.A.

I agree M. Rosenberg
    J.A.

I agree G. Pardu.
    J.A.

Released: January 17, 2014


