



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C.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    shall not be published in any document or broadcast or transmitted in any way.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. T.H., 2016 ONCA 439

DATE: 20160603

DOCKET: C61386

Strathy C.J.O., Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T. H.

Appellant

Delmar Doucette, for the appellant

Dayna Arron, for the Crown respondent

Heard: May 30, 2016

On appeal from the conviction entered on November 28,
    2011 by Justice D.R. McDermid  of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant was convicted of two counts of sexual touching and two
    counts of sexual assault. The complainants were the children of S.T., with whom
    he was in a romantic relationship. They were five and seven years old at the
    time of the offences.

[2]

The appellant submits that the trial judge erred by:

(i) improperly
    rejecting the appellants evidence based on his demeanour as a witness;

(ii) improperly
    rejecting the  appellants evidence because of his supposed minimization of
    opportunity to commit the offences, when he admitted that he had the
    opportunity to commit them;

(iii) failing to
    properly analyze the evidence of the complainant K.T., including by employing a
    logical fallacy regarding the source of her knowledge of sexual activity; and

(iv) failing to properly
    analyze the evidence of the complainant B.T., including by failing to give
    proper weight to the coercive interview techniques that were used to obtain
    B.T.s s. 715.1 statement.

[3]

We would not give effect to any of these grounds of appeal for the
    following reasons.

[4]

First, testimonial demeanour is a proper consideration in the evaluation
    of a witnesss credibility:
R. v. O.M.
, 2014 ONCA 503, at para. 34. Although
    the trial judge found the appellants evidence to be clinical and strange, he
    also stated that it might just be a reflection of the appellants normal
    personality. On a review of the trial judges reasons, it is clear that
    demeanour was only one of the factors the trial judge considered when assessing
    the whole of the evidence. It was not dispositive of the trial judges
    credibility assessment.

[5]

Second, although the appellant admitted that he had the opportunity to
    commit the offences his testimony was replete with attempts to

distance himself from
    situations, circumstances, and opportunities to have committed the offences. In
    our view, the evidence amply supported the trial judges finding that the
    appellant attempted to minimize the opportunities that were available to him to
    commit the offences.

[6]

Third, we see no error in the trial judges consideration of K.T.s
    evidence. The trial judge carefully considered her evidence, including internal
    inconsistencies and inconsistencies with her brothers testimony, and concluded
    that it was worthy of belief. This finding was open to the trial judge.

[7]

We reject the submission that the trial judge erred in concluding  that
    K.T.s sexual knowledge of ejaculation was the result of the appellants
    repeated sexual abuse, not her limited exposure to pornography. The appellants
    submission that the trial judge engaged in logical fallacy in his treatment of
    K.T.s evidence overlooks her detailed and compelling account regarding her
    observation of ejaculate during the sexual assaults. The trial judges finding
    that KTs description of the ejaculate resulted from her personal experience
    was a fair inference from the totality of the evidence.

[8]

Fourth, we also see no error in the trial judges careful review of the
    evidence of B.T. The trial judge acknowledged that the officer interviewing
    B.T. pushed him hard to tell the truth. However, he also noted that B.T. was
    told that the officer was not there to force him to do anything he did not want
    to do. In re-examination, B.T. clarified that he would not say something just
    because the police wanted him to. Based on all of the evidence, the trial judge
    reasonably concluded that B.T.  was truthful in his testimony.

[9]

The appeal is dismissed.

G.R.
    Strathy C.J.O.

S.E.
    Pepall J.A.

C.W.
    Hourigan J.A.


