



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    the complainant or a witness shall not be published in any document or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. P.F., 2012 ONCA 807

DATE:  20121123

DOCKET: C53102 & C53370

Doherty, Epstein JJ.A. and Cavarzan J. (a
d hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

P.F.

Appellant

and

M.F.

Appellant

Neil Jones, for the appellant, P.F.

Crystal Tomusiak, for the appellant, M.F.

Robin Flumerfelt, for the respondent

Heard:  October 24, 2012

On appeal from the conviction entered by Justice Douglas
    K. Gray of the Superior Court of Justice on August 25, 2010, with reasons
    reported at 2010 ONSC 4018, and from the sentence imposed on October 28, 2010.

By the Court:

[1]

The appellants, who were married at one time, were charged with a series
    of sexual assaults against three young girls who lived in their home from time
    to time.  According to the dates in the indictment, the assaults occurred
    sometime between November 2000 and March 2005.

[2]

Some of the charges involved only P.F., some involved only M.F., and
    some involved both.  The Crowns case was based largely on the evidence of the
    three complainants.  The trial judge ultimately convicted the appellants on
    most charges.  He did, however, acquit M.F. on the allegations on which she was
    charged alone.

[3]

The appellants appeal their convictions and the sentences imposed at
    trial.  Counsel for the appellants advised during oral argument that they would
    make no submissions in support of the sentence appeals.

[4]

P.F. testified and M.F. did not testify.  According to P.F.s testimony,
    there was no sexual activity with the complainant T.K., and the alleged assault
    on the complainant A.L. involved an inadvertent touching.  Most of P.F.s evidence
    related to the complainant A.P.  He testified that he did engage in sexual
    activity with A.P. and that M.F. was involved in some of that sexual activity. 
    It was P.F.s evidence, however, that all of the activity was consensual and some
    of it was initiated by A.P.  At the time of the alleged assaults, A.P. was 15 years
    old, was living in the appellants home and was the girlfriend of M.F.s son
    who also lived in the home.

[5]

Counsel for the appellants raised several grounds of appeal.  In oral
    argument, they helpfully distilled their arguments down to two main submissions. 
    First, counsel submit that the trial judge erred in drawing an adverse
    inference against the credibility of P.F. because the complainant A.P. was not
    cross-examined about certain documents referred to and relied on by P.F. in his
    testimony to demonstrate the consensual nature of the sexual activity with A.P. 
    This submission raises the proper application of the so-called rule in
Browne
    v. Dunn
, [1893] 6 R. 67 H.L. (Eng.).

[6]

The second argument raised by counsel for M.F. rests on the contention
    that the trial judge failed to give adequate, separate consideration to the
    case against M.F. and misapprehended evidence relevant to her defence.  Counsel
    submits that the trial judge moved directly from findings of fact made against P.F.
    to the same findings against M.F.  Counsel acknowledges that M.F. relied on P.F.s
    testimony but submits that she had defences that were distinct from those
    advanced by P.F. in his evidence.  Counsel contends that the trial judge failed
    to address those issues.

the
brown
E
v. dunn
complaint

[7]

P.F. testified that on several occasions, A.P. signed documents
    consenting to sexual activity with him.  It is unclear whether those consents
    extended to M.F.  According to P.F., he took the precaution of obtaining
    written consents because he had been accused of sexual assault in the past.  P.F.
    also testified that the documents had been lost some time prior to trial.

[8]

A.P. had testified during the case for the Crown.  She was
    cross-examined at length.  She was not, however, asked any questions about the
    alleged consent forms and it was not suggested to her that she had signed
    anything at any time agreeing to sexual activity with the F.s.

[9]

The defence did not seek to recall A.P. after P.F. had testified.  The
    Crown did not attempt to call A.P. in reply.

[10]

In
    the course of closing submissions, the trial judge raised the question of the
    effect, if any, of the failure to cross-examine A.P. on the written consents
    she had allegedly given to P.F.  The trial judge indicated that the failure to
    cross-examine A.P. raised a real dilemma. He suggested various possibilities,
    including the possibility of drawing an inference against the credibility of P.F.s
    testimony that A.P. had signed the consents.  Defence counsel argued that no
    such inference should be drawn.  In contrast, Crown counsel urged the trial
    judge to draw that adverse inference.  No one suggested that the evidence should
    be reopened to recall A.P.

[11]

The
    trial judge ultimately determined, at para. 29 of his reasons, that the
    failure of counsel for the accused to cross-examine [A.P.] on certain matters
    testified to by Mr. [F.] does effect, to some extent, the credibility of the
    evidence given by Mr. [F.].

[12]

In
    his oral submissions, counsel for P.F., properly in our view, conceded that the
    nature of P.F.s evidence about the consents and the failure to cross-examine
    A.P. on those consents could, in law, attract a negative inference against the
    credibility of that part of Mr. F.s evidence.  Counsel submits, however, that the
    drawing of that adverse inference in this case rendered the trial unfair.

[13]

Counsel
    submits that the unfairness to the appellants flowing from the trial judges
    ruling lies primarily in the drawing of an adverse inference against P.F.s
    testimony after denying him the opportunity to put the contested evidence to
    A.P.  Counsel further submits that unfairness also flows from the drawing of an
    adverse inference when the Crown did not object to P.F.s evidence about the consents
    during his examination-in-chief.

[14]

The
    record does not support the premise underlying the first basis upon which
    unfairness is alleged.  Neither counsel for the Crown nor counsel for the
    appellants sought to recall A.P. after P.F. had testified.  During argument, when
    the trial judge raised the question of the effect of the failure to
    cross-examine A.P. on the alleged consents, there was some discussion about the
    Crowns ability to recall the complainant at that stage of the trial.  We do
    not, however, read that exchange as in any way foreclosing counsel for the
    appellants from asking that A.P. be recalled to give evidence concerning the
    consents.  Quite simply, counsel never sought to recall A.P. and the trial
    judge was never called upon to determine whether A.P. could be recalled.

[15]

The
    second basis upon which the unfairness claim is advanced must also be rejected. 
    It is unclear to us that the Crown had any grounds to object to P.F.s evidence
    about the consents.  In any event, the Crown may have viewed the evidence as
    ultimately favourable to the Crown because it was so patently unbelievable.  However,
    whatever the Crown may have thought of the evidence has no relevance to the
    inference, if any, that the trial judge, as the trier of fact, should draw from
    the failure to put the consents to A.P. when she was testifying.

[16]

We
    also do not accept counsels characterization of the trial judges ruling as
    effectively placing the burden of a lawyers tactical error on the appellants. 
    There is nothing in the record to suggest that counsel made any error in
    judgment in not cross-examining A.P. about the consents referred to in P.F.s
    evidence, or in not asking the trial judge to recall A.P. for the purpose of
    putting P.F.s evidence about the consents to her.  The adverse inference drawn
    by the trial judge had nothing to do with an assessment of the wisdom of any
    tactical choices.  The inference was drawn in the course of the trial judges
    weighing of the evidence that had been placed before him.  He was fact finding,
    not assigning blame for the manner in which the defence was conducted.

[17]

Counsel
    for M.F. submits that even if the trial judge properly drew the adverse
    inference against P.F., he should not have drawn that inference in respect of
    the case against M.F.  We see no basis for that distinction.  P.F.s evidence
    was admissible for and against M.F.  She relied on large parts of his testimony
    including his evidence that the sexual activity with A.P. was consensual.  To
    the extent that the failure to cross-examine A.P. on the alleged consents
    undermined the credibility of P.F.s evidence that the sexual activity was
    consensual, it was bound to adversely affect M.F.s case.

[18]

The
    submissions based on the alleged misapplication of the so-called rule in
Browne
    v. Dunn
fail.

M.F.s other arguments

[19]

Counsel
    for M.F. argues that the trial judge misapprehended material evidence in
    finding that M.F. was a party to two assaults against A.P.  Counsel further
    contends that the trial judge failed to give M.F.s case adequate separate
    consideration from that of P.F.  Counsel contends that the trial judge moved
    directly from her findings against P.F. to the same findings against M.F.  She
    argues that M.F. was in a somewhat different position as there was evidence,
    particularly from P.F.s nephew, to support the contention that M.F. was not
    involved in the sexual activity with A.P.

[20]

In
    support of the argument that the trial judge misapprehended material evidence,
    counsel referred to para. 327 of his reasons:

According to Mr. [F.], there were two consensual threesomes
    involving [M.F.], and the incident involving the dildo was a consensual act
    that involved only [A.P.] and himself.

[21]

Counsel
    submits that in his evidence P.F. described only one consensual threesome and
    not two.

[22]

Counsel
    is correct in the sense that P.F. referred to only one threesome during which
    M.F. was an active participant in the sexual activity.  He did testify,
    however, M.F. was on the bed with him and A.P. on a second occasion when P.F.
    and A.P. were engaged in consensual sexual activity.  We read the trial judge
    as referring to these two incidents in his summary of the evidence at para.
    327.  Read in this way, there was no misapprehension of the evidence.

[23]

In
    any event, even if there was some misapprehension of P.F.s testimony, that
    misapprehension was not material to the result.  The trial judge did not rely
    on only P.F.s evidence to establish the participation of M.F. in the sexual
    activity involving A.P.  The trial judge relied on A.P.s evidence, which
    clearly established that participation.  Even the most narrow reading of P.F.s
    testimony offered strong support for A.P.s evidence that M.F. was involved in
    two of the assaults.

[24]

We
    also reject the submission that the trial judge failed to give adequate
    separate consideration to M.F.s culpability.  While it is true that much of
    the trial judges reasons focused on P.F.s testimony, that focus was
    inevitable given that P.F. testified and M.F. did not.

[25]

The
    trial judges careful credibility findings as they related to the three
    complainants and P.F., applied to the Crowns case against M.F.  Given those
    findings, any claim that M.F. was unaware of the assaults on A.P. was bound to
    fail.  Having found that M.F. was present during two of the assaults and having
    accepted A.P.s evidence that she was actively involved in those assaults, the
    trial judge implicitly rejected any suggestion based on the evidence of the
    nephew that M.F. only became aware of the assaults some time after they
    occurred.

conclusion

[26]

The conviction appeals are dismissed.  We see no merit to the sentence
    appeals and they are also dismissed.

RELEASED: DD NOV 23 2012

Doherty
    J.A.

Gloria
    Epstein J.A.

Cavarzan
    J. (per Doherty J.A.)

CORRECTED DECISION:

Correction made on March 29,
    2021: In light of the publication ban, the appellants names have been put into
    initials.


