



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. S.J.K., 2016 ONCA 926

DATE: 20161208

DOCKET: C60147

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.J.K.

Appellant

John M. Rosen and Shannon McDunnough, for the appellant

Moiz Rahman, for the respondent

Heard: November 21, 2016

On appeal from the conviction entered on December 03,
    2014 by Justice G.W. Tranmer of the Superior Court of Justice, sitting without
    a jury.

By the Court:

[1]

After a five-day judge alone trial, the appellant was convicted of
    sexual assault, sexual interference and invitation to sexual touching involving
    A.B., his former common-law stepson, over a seven year period. He was also
    convicted of one count of assault involving his former common law spouse, S.B.,
    and one count of breach of recognizance. He appeals his convictions, with
    particular focus on the offences involving his former stepson, arguing that the
    trial judges analysis of the credibility and reliability of A.B.s evidence
    was flawed.

Facts

[2]

In June 2003 the appellant moved into a home with S.B. and her son A.B.,
    born in 2000, and S.B.s daughter. He formed a strong relationship with A.B.,
    who eventually grew to consider the appellant his father. The family resided at
    several residences over the next several years. The appellants son from a
    previous relationship moved into the household in 2007, and the appellant and S.B.
    had a child together, born in 2004.

[3]

In October 2012 the appellant moved out of the home he had shared with S.B.,
    A.B. and the other children, having started a relationship with another woman,
    the mother of a friend of A.B. A.B. was very upset over the appellants
    departure, as was S.B. Over the next several months A.B. sent the appellant
    several angry text messages, expressing his anger at the appellant for having
    abandoned the family. S.B. posted Facebook messages expressing her anger at the
    appellant.

[4]

On June 3, 2013 S.B. reported to the police that the appellant had spat
    on her and punched her repeatedly in the head when he had come to her house
    earlier that day to pick up the children. The appellant was arrested and
    charged with assault. On June 12, 2013 S.B. reported to a Childrens Aid Society
    worker that A.B. had alleged earlier that day that the appellant had sexually
    abused him. This was the first time A.B. had made such allegations.

[5]

On June 26, 2013 A.B. gave a video-taped statement to the police
    alleging acts of sexual touching, as well as oral and anal sex. The appellant
    was charged with the offences involving the alleged sexual abuse of A.B. on
    July 2, 2013.

Trial

[6]

A.B.s police statement was admitted into evidence pursuant to s.715.1
    of the
Criminal Code.
A.B. testified and adopted his statement. However,
    in A.B.s trial evidence, the allegations of sexual abuse were more detailed
    and more extensive than the allegations he had made in his police statement or
    at the preliminary inquiry. At trial, A.B. testified that from the age of six,
    he was sexually abused by the appellant hundreds of times at multiple residences
    over a span of seven years. The acts of alleged abuse included sexual touching,
    oral and anal sex performed on A.B. and, at the appellants direction,
    performed by A.B. on the appellant.

[7]

The appellant did not testify at trial, nor did he call any witnesses.
    Defence counsel submitted that reasonable doubt was apparent in the
    inconsistencies in A.B.s testimony, the implausibility of the story told by A.B.,
    the clear and demonstrated animus of the complainants towards the appellant,
    and their motive to fabricate.

[8]

The trial judge gave relatively lengthy oral reasons for convicting the
    appellant. No issue is taken with the trial judges statement of the applicable
    legal principles, including the presumption of innocence, reasonable doubt and
    the analysis from
R. v. W.(D.)
, [1991] 1 S.C.R 742. The trial judge
    also considered
R. v. MG
(1994), 93 C.C.C (3d) 347 (Ont. CA), the case
    principally relied upon by the appellant, and provided an error-free analysis
    of how to assess and weigh inconsistencies in the evidence of a witness.

[9]

In his reasons, the trial judge addressed several inconsistencies
    apparent in A.B.s testimony. He also recognized that the factor of a
    motivation to fabricate was present, and noted that the defence was arguing
    both collusion and that the allegations made by A.B. were not plausible.
    However, the trial judge concluded that the defence submissions on these points
    were not sufficient to raise a reasonable doubt about whether the alleged
    sexual abuse had taken place. He found that A.B. was a credible and reliable
    witness in regard to the core of the allegations he had made, and accepted that
    the Crown had proven beyond a reasonable doubt the truth of the allegations.

Issues

[10]

The
    appellant raises the following issues on appeal:

1.

Did the trial
    judge fail to consider material inconsistencies in A.B.s evidence?

2.

Did the trial judge fail to properly analyze the
    motive of A.B. and S.B. to fabricate the allegations?

3.

Did the trial
    judge fail to properly analyze the possibility of collusion between the
    complainants?

4.

Did the trial
    judge fail to address the issue of the implausibility of A.B.s allegations?

5.

Did the trial
    judge over-emphasize A.B.s ability to recall extraneous details?

6.

Did the trial
    judge shift the burden of proof to the defence to prove the allegations did not
    occur?

Analysis

1. Did the trial judge fail to consider material
    inconsistencies in A.B.s evidence?

[11]

This
    case plainly turned upon the credibility and reliability of A.B.s evidence. We
    need not belabour the obvious: credibility is a matter for the trial judge
    whose findings attract deference in this court absent an error in principle or
    a material misapprehension of evidence:
R v. W.(R.),
[1992] 2 S.C.R.
    122, at para. 21.

[12]

There
    is no doubt that by the time of trial, A.B.s allegations were more detailed,
    elaborate, and extensive than those he gave in his initial police statement and
    at the preliminary inquiry. On appeal, counsel points to a number of
    inconsistencies and argues that the trial judges failure to specifically
    address all of them taints his finding that A.B. was a reliable and credible
    witness.

[13]

We
    do not accept that submission for the following reasons.

[14]

First,
    the trial judges reasons demonstrate that he did consider the inconsistencies
    between A.B.s police statement and his in-court testimony, and he explained
    why he did not consider those inconsistencies to be fatal to A.B.s credibility
    and reliability. When asked in cross-examination why he had not given the
    police all the details in his video statement, A.B. replied: I was embarrassed
    andIt was gross. I didnt want to tell somebody I didnt know stuff that
    happened to me. I barely even wanted to tell my mother. The trial judge viewed
    the video recording of A.B.s police statement, and observed that when giving
    his statement to the police, A.B. was shy, and afraid and demonstrated a lack
    of understanding and sophistication. By the time of trial, the complainant was
    a teenager and more at ease in explaining what had happened.

[15]

Second,
    we agree with the respondent that the trial judges reasons were essentially
    responsive to the submissions made by the appellants trial counsel. Trial
    counsel placed particular emphasis on the fact that A.B. could not recall the
    details of the first incident of abuse when he gave his police statement. The
    trial judge dealt with that argument, and with the others made by trial
    counsel. Many, if not most, of the inconsistencies now raised on appeal were
    not mentioned by trial counsel. In our view, it is entirely understandable why
    the trial judge focused on the inconsistencies alleged by trial counsel and did
    not find it necessary to address in his reasons other apparent inconsistencies.

[16]

We
    are satisfied that when the trial judges reasons are read in the context of
    the submissions he heard, they reveal that the trial judge gave adequate
    consideration to the essential point, namely, whether there was an explanation
    for the manner in which A.B.s allegations changed from the time he gave his
    police statement until he testified at trial. The trial judge concluded there
    was such an explanation, namely, A.B.s age, shyness and immaturity at the time
    he gave his police statement.

2. Did
    the trial judge fail to properly analyze the motive of A.B. and S.B. to
    fabricate the allegations?

[17]

The
    appellant submits that the trial judge failed to pay adequate attention to the
    evidence of A.B. being upset and disappointed when the appellant moved out of
    the family residence, evidence the appellant contends revealed A.B. had a
    motive to fabricate.

[18]

We
    do not agree with that submission. The trial judge specifically referred to the
    evidence which clearly demonstrate [A.B.s] anger and upset at what he
    perceived to be the accused abandoning him and his family in favour of his
    friend and his friends mother. The trial judge also specifically noted that
    the complainants mother had demonstrated considerable anger and upset and had
    expressed a desire for revenge against the appellant. The trial judge stated I
    take this into consideration in my overall assessment of the credibility and
    reliability of their evidence. However, having taken the evidence of motive to
    fabricate into account, the trial judge concluded that he found A.B.s evidence
    to be nonetheless credible and reliable.

[19]

In
    our view, the trial judge was entitled to make his own assessment of the
    significance to be attached to the motive to fabricate which he fully
    recognized and, in the absence of any material misapprehension of the evidence
    on the point, we fail to see how this Court could interfere with his findings.

3. Did
    the trial judge fail to properly analyze the possibility of collusion between
    the complainants?

[20]

The
    trial judge specifically addressed the possibility of collusion between A.B.
    and S.B., and provided adequate reason for concluding that there had been no
    collusion. In particular, the trial judge observed that while the complainant
    and his mother had the opportunity to collude, S.B. gave no evidence to
    corroborate A.B.s allegations of abuse. To the contrary, she testified that
    the accused had been a good father to the children, and that she had no reason
    to suspect any misconduct.

[21]

We
    see no merit in this ground of appeal.

4. Did
    the trial judge fail to address the issue of the implausibility of A.B.s
    allegations?

[22]

On
    appeal the appellant places considerable emphasis on what he alleges to be the
    implausibility of A.B.s allegations. He submits that it is improbable that the
    appellant could have committed these offences without anyone in the household
    noticing; that it is improbable that a child between six and 12 years old would
    not have suffered physical injury from having been repeatedly penetrated anally;
    and that despite his allegations of anal sex, A.B. never mentioned the presence
    of feces.

[23]

The
    appellant contends that the following passage from the reasons reveals that the
    trial judge erred by improperly putting the claim of implausibility to one
    side. The trial judge listed several points which the defence said pointed to
    implausibility, namely, that: lubricant was not used; there was no evidence of
    grooming; there was no evidence of physical injury; a six-year-old would be
    unable to have anal sex on the appellant, and; the lack of mention of feces.
    The trial judge then stated:

The accused is required to prove nothing whatsoever in this
    case, but neither are any of these four points essential elements of the offences
    charged upon which the Crown has the onus of proving beyond a reasonable doubt.
    I do not consider that these four points bear on my assessment of the
    credibility and reliability of the complainants evidence.

[24]

The
    appellant submits that this passage reveals that the trial judge failed to
    consider the defence implausibility argument simply because it rested on points
    that were not essential elements of the offence the Crown was required to
    prove.

[25]

We
    disagree. We are satisfied that when read in the light of the entire record and
    submissions that were made to the trial judge, the passage reveals no such
    error. The trial judge recognized that when assessing the plausibility of A.B.s
    allegations, he had to take into account the fact that he was faced with the
    difficult task of assessing the evidence of a child regarding acts with which
    no child would be familiar. While A.B. testified that the appellant performed
    anal sex on him and that he had performed anal sex on the appellant, neither
    the Crown nor defence questioned A.B. as to the degree of penetration that
    either he or the appellant were able to achieve. As Crown counsel pointed out
    in his submissions, what a young child perceived to be penetration could well
    be something well short of full penetration. Crown counsel also pointed out
    that neither party called evidence on the likelihood of physical injury or of
    the presence of feces. The trial judge made it clear during argument that the
    defence had no burden. However, in the absence of some evidence on the point,
    he was not prepared to draw any conclusions from A.B.s failure to mention
    anything about feces or injuries.

[26]

In
    our view, the trial judge was entitled to refuse to draw the negative
    inferences advanced by the defence that were reasonably based on the evidence
    that had been led.

[27]

When
    fairly read in the overall context of this case, the passage indicates nothing
    more than that the trial judge regarded aspects of the appellants
    implausibility argument as speculative and unsupported by the record. We are
    not persuaded that this isolated passage in the trial judges lengthy oral
    reasons for judgment that fully canvassed the evidence demonstrates that the
    trial judge failed to give adequate consideration to the defence argument of
    implausibility.

5. Did
    the trial judge over emphasize A.B.s ability to recall extraneous details?

[28]

The
    trial judge did refer to A.B.s ability to recall certain details as to time,
    place and circumstances, but we do not agree that he erred in this regard. This
    was only one factor in his credibility assessment, and at trial defence counsel
    attacked alleged inconsistencies in A.B.s evidence regarding surrounding
    details. The trial judge did not err in responding to those submissions.

6. Did
    the trial judge shift the burden of proof to the defence to prove the
    allegations did not occur?

[29]

We
    do not agree that the trial judge shifted the burden of proof to the defence.
    The passage relied upon by the appellant to support this contention corresponds
    with the second step of the
W.(D.)
analysis. It was preceded by a
    proper explanation of
W.(D.),
and immediately followed by a clear
    statement that the trial judge found that the Crown had proved beyond a
    reasonable doubt that the alleged incidents of repeated sexual abuse described
    by the complainant did occur.

Disposition

[30]

For
    these reasons, the appeal is dismissed.

Released: December 8, 2016

Robert J. Sharpe
    J.A.

K.
    van Rensburg J.A.

G.
    Pardu J.A.


