



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: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    information that could identify the victim shall not be published in any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. R.L., 2016 ONCA 455

DATE: 20160610

DOCKET: C60552

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. L.

Appellant

Tushar Pain and Lucas Rebick, for the appellant

Dena Bonnet, for the respondent

Heard: April 19, 2016

On appeal from the conviction entered by Justice Lawrence
    T. Feldman of the Ontario Court of Justice on January 15, 2015, with reasons
    reported at 2015 ONCJ 15.

Strathy C.J.O.
:


I.

Introduction

[1]

The appellant was convicted of four counts of
    sexual assault and four counts of sexual interference for acts involving his
    nieces that occurred between 2002 and 2005. The sexual assault convictions were
    stayed in accordance with
R. v. Kienapple
, [1975] 1 S.C.R. 729.

[2]

The offences were alleged to have taken place
    when the complainants stayed for weekend sleepovers at an apartment shared by
    the appellant, his wife and the complainants grandparents. The complainants
    did not disclose the abuse until 2012.

[3]

The trial lasted ten days spread over eleven
    months. The Crowns case consisted of the evidence of the four complainants.
    The appellant and his wife testified. He called five additional witnesses,
    including two police officers and two other witnesses, described by the trial
    judge as character witnesses.

[4]

The defence theory was that the complainants had
    colluded to fabricate stories of sexual abuse in order to punish the appellant
    and to get him removed from the home for his perceived abuse of their
    grandparents.

[5]

The appellant asserts that the trial judge
    misapprehended material evidence and subjected the defence evidence to uneven
    scrutiny. For the reasons that follow, I would dismiss the appeal.


II.

Background

[6]

The complainants were triplet sisters, C1, C2
    and C3, and their sister, C4. The triplets were between 7 and 11 years old at
    the time of the events. C4 was four years older.

[7]

The girls were close to their grandparents, with
    whom they had lived in Guyana before they immigrated to Canada with their
    parents in 2001. The grandparents came to Canada in 2003. They lived in an
    apartment occupied by their daughter and her husband (the appellant), another
    daughter and occasional tenants.

[8]

The offences were alleged to have occurred
    during the girls sleepover visits. Generally, two girls stayed over at the
    same time, sleeping in their grandparents bedroom. These visits began in 2003
    and ended in 2005, due to family frictions, not directly related to the matters
    at issue.

[9]

At the time of trial, the triplets were 18 years
    old and their older sister was 21. They described, in varying detail, incidents
    of the appellant groping their thighs with his hands and touching their breasts
    and vaginas with his hands and mouth. The touching included some incidents of
    digital penetration.

[10]

The incidents were alleged to have occurred in various
    locations of the apartment, when other residents were not in the immediate
    vicinity or were out of the apartment or sleeping. Many of the events were
    alleged to have taken place in the bedroom shared by the appellant and his wife.

[11]

With one exception, there were no witnesses to
    any of the incidents. The exception was an assault described by C1 as having
    occurred when she was about 10 years old. She said that the appellant came into
    the bathroom after she had taken a shower, lifted her onto the toilet seat,
    removed her towel and sucked her nipples. At some point he stopped and left the
    bathroom.

[12]

C2 testified that she had witnessed the incident
    while it was in progress. She described opening the door of the bathroom and
    seeing her sister standing on the toilet seat while the appellant sucked her
    nipples. She said nothing, left the room, and did not mention the incident to
    C1 until several years later when the sisters discussed their experiences after
    C1 disclosed the abuse to her guidance counsellor.

[13]

C1 testified that at some point she and C3 confided
    to one another that the appellant had been abusing them. They agreed that if
    either of them were in a room alone with the appellant the other would go back
    into the room to make sure that her sister was not left alone with him. C4
    testified that she too would stay close to whichever sister accompanied her on
    weekend visits.

[14]

C1 also testified that at some point she
    discussed the abuse with both C2 and C3 and told them they should tell their
    parents. The others objected because they were concerned that their parents
    would become more overprotective than they already were or that they would
    think differently of them.

[15]

C1 disclosed the abuse to her guidance
    counsellor in 2012, when she was 16 years old. The counsellor told her to
    discuss the matter with her sisters over the March break. C1 testified that she
    and her siblings discussed the matter, but did not want to report it to their
    parents. After the break, the counsellor met with all three triplets, at which
    time C2 and C3 disclosed that they too had been abused. The counsellor encouraged
    them to disclose the abuse to their parents. She then called the police. After
    speaking to their parents, all four sisters gave videotaped statements to the
    police. C4 told the police that she too had been abused. The appellant was
    charged with sexual assault and sexual interference.


III.

The trial judges reasons

[16]

The trial judge began by noting Wilson J.s
    observation in
G.B., A.B. and C.S. v. The Queen
(1990), 56 C.C.C. (3d)
    200 (S.C.C.) concerning the need for trial courts to apply common sense in
    dealing with the testimony of young children by not imposing the same exacting
    standard on them as it does on adults, without lowering the standard of proof.
    He also noted that, when assessing the evidence of children, it is important
    to take account of that individuals mental stage and intellectual level,
    comprehension and ability to articulate her recollection, while at the same
    time maintaining the traditional standard of proof. Here, he referred to
R.
    v. W.(R.)
(1992), 74 C.C.C. (3d) 134 (S.C.C.).

[17]

He then reviewed the evidence of the
    complainants and the manner in which their evidence came to light.

[18]

After reviewing the Crown evidence, the trial
    judge examined the evidence of the defence. The appellant testified. He denied
    the events of abuse and said that he had never been alone with any of the
    girls. He was hardly ever around when the girls were in the apartment, even on
    weekends, because he was usually working. He produced a letter from his
    employer concerning his hours of work, indicating that he worked on Saturdays
    when required. He said that the girls were not allowed in the bedroom he shared
    with his wife.

[19]

The appellants wife also testified. She said that
    she was always present when the appellant was at home and said the girls spent
    most of their time in their grandparents room. She confirmed her husbands
    evidence that the girls were never alone in the matrimonial bedroom.

[20]

Other witnesses, including a relative and two
    friends of the appellant, testified. A police officer testified regarding an
    investigation of complaints of abuse of the grandparents, which were
    uncorroborated.

[21]

The trial judge then identified the positions of
    the parties, noting the appellants position that the triplets colluded in
    fabricating false allegations of sexual assault motivated some 9 years after
    they stopped visiting the [appellants] apartment by a collective animus to
    punish the [appellant] for abusing their grandparents in seeking to have the
    police remove him from his residence. This was done, according to the theory,
    without the involvement of the girls parents, led by one of the triplets, who
    concocted an unreliable chronology and buttressed by the evidence of the older
    sister who joined in the conspiracy.

[22]

The trial judge then set out his findings of
    credibility. He considered the complainants evidence credible, straightforward
    and sincere and gave reasons for these conclusions. He noted that they appeared
    to be reluctant witnesses and found that their reluctance to disclose the abuse
    to their parents was due to embarrassment and their fear of the consequences. There
    were inconsistencies in detail and in recollection between their evidence, but he
    regarded their evidence as consistent in relation to the material facts. Their
    reliability was enhanced by their testimonial demeanour. He rejected the
    assertion that their testimony was the result of a conspiracy to concoct false
    allegations, many years later, in order to separate their estranged
    grandparents from the appellant.

[23]

The trial judge said there was no lack of
    opportunity for the appellant to have committed the offences and regarded his
    evidence to the contrary as contrived. Accordingly, he placed little weight on
    this evidence. He found the employers letter unhelpful in determining how
    often the appellant worked on Saturdays and whether he worked on Sundays. He
    also noted that some of the alleged offences occurred in the evening or at
    night. Presumably, the appellants work schedule would not have kept him away
    from the girls at these times.

[24]

Nor was the trial judge prepared to rely on the
    evidence of the appellants wife. He found her evidence lacking in objectivity.
    She exaggerated how often the appellant worked on weekends and said that she
    was always home when the appellant was, even though she was sometimes out
    shopping on weekends. In the trial judges view, her evidence that the bedroom
    door was locked out of habit was contrived and self-serving.

[25]

The trial judge then set out the burden of proof
    and the reasonable doubt standard. He referred to the principles established in
    several authorities, including
R. v. Starr
, 2000 SCC 40, and
R. v.
    W.(D.)
, [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397.

[26]

Finally, he set out his reasons for accepting
    the evidence of the complainants and rejecting the evidence called by the
    appellant, and explained why he was not left in reasonable doubt that the
    appellant had committed the offences alleged. He rejected the assertion that
    the complainants had colluded. In contrast, he found the testimony of the
    appellant and his wife to be transparently coordinated.


IV.

Grounds of Appeal

[27]

The appellant asserts two grounds of appeal:
    misapprehension of the evidence and uneven scrutiny of the evidence.

A.

First ground: Misapprehension of the evidence

[28]

The appellant says the verdict cannot stand because the trial judge
    misapprehended essential parts of the evidence of the defence and the Crown. I
    will first identify the alleged misapprehensions. I will then discuss and apply
    the applicable principles.

(1)

Defence evidence

[29]

The misapprehension of the defence evidence related to the
    appellants evidence concerning his lack of opportunity.

(a)

Hours of work

[30]

The first complaint is that the trial judge made credibility
    findings adverse to the appellant as a result of his misapprehension of his
    evidence about his hours of work.

[31]

The appellant testified that he worked for two companies after
    coming to Canada. Between 2002 and 2005 he worked at Fincore Industries, where
    he worked Mondays through Saturdays and occasional Sundays, when there was a
    demand. He then worked at Deacro Industries from October 2005 until 2007. There
    he worked weekdays and some Saturdays, but not Sundays. He produced a letter
    from Deacro which indicated that he had worked Saturdays when asked to do so, apparently
    when production requirements made it necessary.

[32]

The trial judge noted the appellants evidence
    that he worked some Sundays. His wife testified that he worked on weekends
    most of the time. The trial judge found the wifes evidence a likely
    exaggeration, given the content of the employers letter, which made no
    reference to Sunday work and noted that Saturday work was limited to production
    need.

[33]

The trial judge also found that the employers
    letter was unhelpful, given it did not address the appellants work prior to
    2006 or whether he worked at all on Sundays. He noted that a number of the
    alleged offences occurred in the evening or at night, so, contrary to the
    appellants implied assertion that there was no opportunity, there was in
    fact no lack of opportunity. The trial judge found the appellants evidence and
    his attempt to minimize his contacts with the complainants to be contrived and
    said he would put little weight on it.

[34]

The appellant says these criticisms were unfair and were based on a
    misapprehension of the evidence. The indictment covered a wide period, from
    2002 to 2010, and it was reasonable for him to produce evidence of his hours of
    work during that time. Moreover, his employment at Deacro postdated the
    offences for which he was ultimately convicted, and he had never suggested that
    he worked Sundays at Deacro.

(b)

Locking the bedroom door

[35]

The other complaint of misapprehension of the defence evidence
    related to the evidence of both the appellant and his wife that their bedroom
    was off limits to the complainants. The trial judge noted that both the
    appellant and his wife described their bedroom as being locked all the time.
    They had, in fact, used the word locked in relation to their bedroom door, but
    they clarified that the door was not actually locked when they were present in
    the apartment. The appellant said the bedroom remained off limits to the
    complainants, and his wife explained that the door remained shut even when it
    was unlocked.

[36]

The appellant says the trial judge was unfairly critical of his
    evidence because he misapprehended his evidence and his wifes evidence on this
    point.

(2)

Crown evidence: The March break meeting

[37]

The appellant also claims that the trial judge misapprehended the
    Crown evidence in one particular respect. He found that C2 had told C1 that she
    had observed the incident in the bathroom and that she made this revelation for
    the first time at the March break meeting, and he found that this supported
    C1s evidence. The appellant says there was no evidence of any March break
    meeting, although there was a meeting with the guidance counsellor after the
    March break.

(3)

Discussion

[38]

In
R. v. Morrissey
(1995), 97 C.C.C.
    (3d) 193 (O.C.A.), this court observed that the assessment of an argument based
    on misapprehension of evidence depends on the nature and extent of the
    misapprehension and

its significance to the trial judges verdict.
    Where a judge is mistaken as to the substance of material parts of the evidence
    and those errors play an essential part in the reasoning process resulting in a
    conviction, the verdict is not a true verdict and cannot stand. The Supreme
    Court adopted this approach in
R. v. Lohrer
, 2004 SCC 80, [2004] 3
    S.C.R. 732, at paras. 1-2.

[39]

In my view, the appellants complaint that the
    trial judge misapprehended the defence evidence must be considered in the
    broader context of the appellants denial of opportunity to commit the offence
    and his evidence that he was never alone with any of the complainants. The
    context includes the evidence of the appellants wife to the same effect.

[40]

This evidence painted a picture of a man who was
    always working, a wife who was never out of the home, a bedroom that was
    forbidden territory to their young nieces, with a door that was always closed.
    The trial judge, who heard and saw the witnesses as they were challenged on this
    evidence, was entitled to find that the evidence was exaggerated and contrived.
    His misstatements of the evidence were not in relation to matters of substance
    and were not essential to his reasoning process.

[41]

Nor do I see any significance in the trial
    judges misstatement of the Crown evidence concerning the March break
    meeting.

[42]

The trial judge found that C1s evidence about
    the bathroom incident was supported by C2s evidence, which she kept to herself
    until she informed C1 when all the sisters discussed these matters in the
    basement of their home over the March break following a meeting with [the
    guidance counsellor] who had encouraged her to disclose the abuse. He found
    that C2s evidence materially supported C1s story. In fact, C2s evidence was
    that this disclosure was not made to her sisters until the second meeting with
    the guidance counsellor
after
the March break.

[43]

While the trial judge was mistaken about the
    timing of the disclosure, this does not affect the substance of his conclusion
    or the reality that C2s evidence was confirmatory of C1s evidence. C2
    testified that she did not think her sister saw her come into the bathroom and
    C1 testified she had not seen her sister enter the bathroom. There was evidence
    that the girls did not discuss the specifics of the abuse. The error in the
    trial judges recollection of the timing of the disclosure was inconsequential.

B.

Second ground: Uneven analysis of the evidence

[44]

The appellant says the trial judge erred in law
    by subjecting his evidence to a stricter standard than the Crowns evidence. In
    particular, he says that the trial judge erred in treating inconsistencies in
    the complainants evidence as related to peripheral matters.

[45]

The Crown submits in reply that this complaint must
    be considered in the context of the defence theory of fabrication and the manner
    in which the trial unfolded. After hearing and observing the evidence of the
    four sisters, the trial judge found [t]here was nothing in the uneven
    recollection by the complainants of the sexual violations that permitted a hint
    of collaboration.

[46]

It is, of course, an error for a trial judge to
    subject the accuseds evidence to a stricter standard of scrutiny than the
    evidence of the Crown:
R. v. T. (T.)
, 2009 ONCA 613, at paras. 28 and
    31. In
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (O.C.A.), Doherty J.A.
    observed that to succeed in arguing that the trial judge subjected the evidence
    of the accused to a stricter standard than the evidence of the Crown, the
    appellant must point to something in the reasons of the trial judge or perhaps
    elsewhere in the record that make it clear that the trial judge had applied different
    standards in assessing the evidence of the appellant and the complainant.

[47]

As Laskin J.A. observed in
R. v. Aird
,
    2013 ONCA 447, at para. 39, this is a difficult argument to make for two
    reasons. First, a trial judges findings of credibility attract a high degree
    of deference. Second, the court sometimes views the argument as a veiled
    invitation to reassess the trial judges credibility determinations.

[48]

I do not accept the argument that the trial
    judge ignored material inconsistencies in the complainants testimony, while
    subjecting relatively inconsequential issues in the appellants and his wifes
    testimony to granular and unforgiving scrutiny.

[49]

The appellant does not challenge the trial
    judges finding that the complainants did not collude. The trial judge observed
    that the complainants uneven recollection of the sexual assaults did not
    permit a hint of collaboration.

[50]

These findings were based on the trial judges
    assessment of the evidence of all the complainants. He had the distinct
    advantage of hearing and seeing the evidence of the four complainants as they
    testified about abuse that had occurred more than seven years earlier. He
    considered their evidence to be credible, but was not blinded to the
    inconsistencies. It is worth noting that even defence counsel described the
    complainants as a little less mature, a little less articulate, a little less,
    perhaps, educated than other girls their age. He added: Theyre more
    simple-minded, at least thats certainly the way their evidence came off to me,
    and particularly the older, the oldest of the siblings. Some inconsistency in
    the complainants recollection of events that transpired years earlier, when
    they were young children, is unsurprising.

[51]

The trial judge found that the inconsistencies
    in the complainants evidence related to peripheral matters and could be
    explained by the passage of time and the frailties of youthful recollection. In
    contrast, the issues in the appellants and his wifes testimony were not
    related to peripheral matters. The appellants work schedule and whether he and
    his wife habitually barred the complainants from their bedroom spoke directly
    to the appellants opportunity to commit the offences. The appellant has not
    demonstrated that the trial judge applied different standards in assessing the
    evidence of the appellant and the complainants. I see no merit to this ground
    of appeal.


V.

Order

[52]

For these reasons, I would dismiss the appeal.

G.R. Strathy C.J.O.

I agree E.E. Gillese
    J.A.

I agree G. Pardu J.A.

Released: June 10, 2016


