



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. Becks, 2016 ONCA 91

DATE: 20160202

DOCKET: C57799

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nathaniel Becks

Appellant

Mark Halfyard, for the appellant

Joanne Stuart, for the respondent

Heard: January 20, 2016

On appeal from the convictions entered on April 5, 2013
    by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting
    without a jury.

ENDORSEMENT

OVERVIEW

[1]

The appellant, Nathaniel Becks, appeals his convictions for sexual
    assault, sexual interference, and invitation to sexual touching in respect of a
    seven-year-old girl.  The incidents at issue were alleged to have taken place
    over a six-month period in 2011 after the appellant moved in with the
    complainant, her mother, and her 11-year-old brother.  The allegations made by
    the complainant against the appellant involved vaginal touching, vaginal
    intercourse, the insertion of a blue sex toy into her vagina, oral sex, and
    showing her pornographic videos.

[2]

At trial, the complainant testified, adopting statements that she had
    given to the police; she was cross-examined.  The complainants mother
    testified.  The appellant also testified, denying all of the complainants
    allegations.

[3]

At trial, the appellant submitted that the complainants evidence was
    unreliable and as such should raise a reasonable doubt.  In his reasons, the
    trial judge reviewed the evidence in detail and specifically addressed three
    episodes in the complainants evidence referred to by defence counsel, after
    which he concluded that the Crown had proven the case against the appellant
    beyond a reasonable doubt. He convicted the appellant on all three counts.

[4]

On this appeal, the appellant argued that a key part of the defences
    case at trial was that the complainant could have accessed information about
    the sexual episodes she described from sources other than contact with the
    appellant, specifically from DVDs, videos and a book that were present in the
    home.  While appellants counsel acknowledged that the Crown had a case here,
    he submitted that the case had its warts.  The  appellant submitted that the
    Crowns case came down to an assessment of the complainants credibility and,
    in dealing with that issue, the trial judge committed three errors in his
    reasoning which alone, or cumulatively, amount to reversible error.  According
    to the appellant, those errors involved the application by the trial judge of
    stereotypical reasoning which tainted his assessment of credibility and
    consequent findings, necessitating a new trial.

FIRST ERROR

[5]

The first error the appellant points to concerns the trial judges
    treatment of evidence about a sex education book that the complainants mother
    had purchased.  The complainants mother testified that she had left the sex
    education book in the living room for her children to read.  One day, she saw
    the complainant and the appellant looking at the book together on the living
    room couch.  She did not overhear their conversation, but took the book out of
    the living room and put it in the bedroom used by herself and the appellant.

[6]

The appellant testified that on one occasion the complainant had asked
    him questions about the book when he was sitting on the living room couch, but
    he was not comfortable with the discussion and went outside.  On his return, he
    learned that the complainants mother had taken the book out of the living
    room.

[7]

In dealing with that evidence, the trial judge stated:

A description Mr. Becks gave of his relationship with [the
    complainant] is one that paints a picture of him tolerating her.  She was there
    but the reason he was there is because of his relationship with [the
    complainants mother].  [The mother] just happened to have two children.  There
    is no evidence of emotional interaction, any closeness between the two of
    them.  Im driven to a thought that a seven year old girl would more likely
    raise, generally speaking if she was curious, issues of a sexual nature about
    her body with her mother rather than a male not even her father, and one with
    whom according to Mr. Becks she was not very close.

Im driven to the conclusion that she must have asked him those
    questions because of their sexual connection regarding the acts that she had
    described.

[8]

The appellant submits that the trial judge engaged in impermissible
    stereotypical reasoning in reaching the conclusion that the complainants
    questions to the appellant about the book supported her allegations that he was
    abusing her.   The appellant submits that the evidence on this issue was thin,
    and the trial judge placed too much value on this evidence in reaching his
    conclusion that the events alleged took place.

[9]

Although the respondent agrees that a trier of fact is not entitled to
    speculate or apply stereotypes, the respondent submits that the comments of the
    trial judge about the sex education book incident were informed by the evidence
    about this specific complainant and the surrounding circumstances in this case.

[10]

We
    agree with the respondent that the trial judge referred to the specific
    evidence in the case to draw conclusions about the complainant and the nature
    of her relationship with the appellant. It was open to the trial judge to make
    the inference that he did on the evidence before him.

SECOND ERROR

[11]

The
    second error identified by the appellant concerns evidence of the complainant
    that the appellant showed her a video or movie depicting adults engaging in
    sex.

[12]

The
    complainants mother owned a camera.  It was not in dispute that the camera
    contained a video of the appellant and the complainants mother engaging in
    sexual acts.

[13]

In
    one statement to the police, the complainant stated that the appellant had
    shown her, on a small television screen in his bedroom, a sex video of old
    people having sex.  In another statement, the complainant stated that the
    appellant had shown her on a camera a video depicting her mother and the appellant
    doing the kinda stuff that he did to me. At trial, the complainant testified
    in cross-examination that the appellant had shown her a video on her mothers
    camera; on re-examination, she stated that the video on the camera showed old
    people having sex, but she did not recognize the old people.

[14]

The
    appellant denied showing any sex videos to the complainant.  He stated that on
    one occasion he had showed the complainant how to use the camera.  At the time,
    he was showing the complainant pictures of some of his children.  The
    complainant was breathing over my shoulder, which he did not like, so he
    explained to her how to use the camera and she flipped through the pictures.

[15]

At
    trial, the complainant testified that she did not know how to use the camera. 
    In one of her statements to the police, the complainant stated that the
    appellant showed her five videos on the camera, but I just skipped them and
    went to the pictures.

[16]

A
    key component of the defence at trial was that the complainant had access to
    sexually explicit materials in her home, including DVDs and videos, through
    sources other than the appellant.  In dealing with the issue of the camera, the
    trial judge stated:

[The complainant] said that Mr. Becks showed her a video on
    that camera which showed Mr. Becks and her mother performing sex acts.  The
    evidence is that the camera was kept in her Moms room in a drawer, that [the
    complainant] respected Moms domain.  The door was kept closed and it was expected
    that she not enter and there is, in fact, no evidence that she entered on her
    own.  Again I ask myself, where would a seven year old get the mechanical, if
    mechanical is the right word, the where with all to access a video on a camera
    such as that on her own?

Mr. Becks stated that, well, she was looking over my shoulder
    while I one day was accessing photos of my children, thats probably where she
    learned of it.  Those are my words but thats the essence of his evidence with
    respect to that issue.  I accept the evidence that she watched a video of sex
    acts between Mr. Becks and her mother shown to her by Mr. Becks, and
I
    simply find it incredible that a seven year old would access such a video or
    would have the ability to access such a video on her own
. [Emphasis added.]

[17]

The
    appellant submits that the complainants evidence on her ability to use the
    camera was equivocal.  The trial judge, drawing impermissibly on his own
    experience, found that the complainant was incapable of operating the camera because
    of her age.  According to the appellant, this was a material error which
    prejudiced the defences position that the complainant could access the videos
    other than through the appellant.

[18]

While
    the trial judge should have avoided speculating about the technological
    capabilities of seven-year-old children, we accept the respondents submission
    that the evidence, taken as a whole, supported the trial judges ultimate
    conclusion that the complainant did not access the sex videos on her own.  Both
    in her statements to the police and in her evidence at trial, the complainant
    consistently stated that the appellant had shown her a video depicting adults
    engaged in sex acts.

THIRD ERROR

[19]

Finally,
    the appellant submits that while it was open to the trial judge to consider the
    absence of evidence of motive to fabricate in conducting his credibility
    determination, the trial judge erred in assessing the evidence of a child
    complainants motive to fabricate in the same manner as such evidence for an
    adult complainant. Specifically, the appellant takes issue with the trial
    judges use of the decision in
R. v. Batte
(2000), 49 O.R. (3d) 321
    (C.A.), where this court stated, at para. 123:

It was open to the trial judge
    to tell the jury that it was entitled to consider what motive, if any, the
    complainants had to falsely accuse the appellant of sexual abuse. It was
    further open to him to instruct the jury that if they concluded there was no
    such motive, it was open to them to consider why the complainants would make
    the allegation and expose themselves to the rigours of cross-examination on
    very personal matters. In doing so, the trial judge would be doing nothing more
    than telling the jury to use their common sense.

[20]

After
    referring to this passage, the trial judge stated:

The Ontario Court of Appeal has instructed me to use my common
    sense, and even without those instructions I will do so.  Disclosure was
    spontaneous.  Why would [the complainant] tell her mother of those incidents,
    not just one incident, not a fleeting one, but a repetitive series of acts over
    an extended period of several weeks and months if it did not occur?

Theres no evidence of any animosity in this relationship
    between Mr. Becks and [the complainants mother] except his evidence that shes
    said to be a jealous person.  Certainly there was no evidence that [the
    complainant] was an unhappy seven year old who would want Mr. Becks out of her
    life.  It was, after all, [the complainant] who volunteered this disclosure to
    her mother on October the 5
th
, and I find that there is no motive
    for [the complainant] to have fabricated a tale of sexual abuse.

[21]

The
    appellant submits that the principles stated in
Batte
about the
    assessment of evidence of motive to fabricate allegations of sexual abuse do
    not apply in the same manner when the witness is a child.  The respondent
    disagrees, arguing that the appellants position stands at odds with the
    approach to assessing the evidence of child witnesses described by the Supreme
    Court of Canada in
R. v. W. (R.)
, [1992] 2 S.C.R. 122.

[22]

We
    accept the respondents submission.  In
W. (R.)
, the Supreme Court of
    Canada stated that the evidence of children should not be approached from the
    perspective of rigid stereotypes, but on a common sense basis, taking into
    account the strengths and weaknesses which characterize the evidence offered in
    the particular case: at p. 134.  As his reasons disclose, the trial judge
    applied that approach, and his finding that there was no motive for the
    complainant to fabricate her allegations against the appellant was grounded in
    the evidence of the specific case before him.

DISPOSITION

[23]

For
    the reasons given above, we see no basis to interfere with the convictions
    entered by the trial judge.  We therefore dismiss the appeal.

K.M.
    Weiler J.A.

M.
    Tulloch J.A.

David
    Brown J.A.


