



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    the complainant or a witness shall not be published in any document or broadcast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. Thompson, 2012
    ONCA 564

DATE: 20120831

DOCKET: C54852

Feldman, Sharpe and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Thompson

Appellant

Frank Addario, for the appellant

Roger A. Pinnock, for the respondent

Heard: August 21, 2012

On appeal from the judgment of Justice Michael H. Tulloch
    of the Superior Court of Justice, sitting as a summary conviction appeal court judge,
    dated December 30, 2011, dismissing the appeal from the conviction entered by
    Justice June Maresca of the Ontario Court of Justice on May 6, 2010.

By the Court:

[1]

The appellant was convicted of two counts of sexual assault and one
    count of invitation to sexual touching in a summary conviction prosecution in
    the Ontario Court of Justice.  His appeal to the Superior Court of Justice was
    dismissed.  He appeals the convictions to this court, having been granted leave
    to appeal by a single judge of this court.

[2]

The alleged offenses involved a nine-year-old female complainant who
    stayed with the appellant and his wife overnight on two occasions: once in
    April and once in May 2009.  The appellant and his wife were close friends of
    the complainants parents and acted as adopted grandparents to their
    children.

[3]

The complainant and appellant gave differing accounts of what occurred
    on the overnight visits.  The complainant testified that on each of her two
    visits, the appellant had rubbed her breasts, vagina and buttocks and asked her
    to rub his belly and put her hand down his pants while they watched a movie in
    the basement.  This formed the basis of the sexual assault charges.  The
    allegation of invitation to sexual touching arose from the complainants
    testimony that during her May visit, the appellant invited her to lie with him
    in a hammock and rub his belly.

[4]

The appellant, age 72 at the time of the alleged offenses, denied the
    allegations.  He testified that it was the complainant who took his wrists and
    placed them on her breasts on each occasion.  His evidence was that he pulled
    his hands away and scolded the complainant for her behaviour.  He denied the
    invitation to touching allegation and stated that the complainant simply lay
    with him for a few moments in the hammock.  The appellants wife testified that
    she was present during the entire time the movies were played and that nothing
    untoward occurred.

[5]

The trial judge engaged in a lengthy discussion of credibility and gave
    detailed reasons for concluding that she accepted the evidence of the
    complainant and rejected that of the appellant and his wife.

[6]

The appellant submits that the reasons of the summary conviction appeal
    court judge dismissing the appeal failed to deal with his submissions that the
    trial judge had both misapprehended evidence relating to her credibility
    findings and failed properly to apply the
W.(D.)
test.  These
    submissions effectively invite us to deal with the alleged inadequacies in the
    trial judge's reasons, and we will proceed to dispose of the appeal on that
    basis.

(1)

Did the trial judge misapprehend the evidence
    relating to the timing of the basement assaults or fail to explain adequately
    her reason for rejecting the evidence of the appellants wife?

[7]

The complainant consistently testified that both basement assaults occurred
    during the first part of the movie when the appellants wife was not present.  The
    appellants wife testified she was present for the entire movie on both
    occasions.  On one of the evenings, she left the basement after the movie had
    concluded to get a glass of wine.  In her trial evidence, she testified that
    she took the complainant with her for a treat.  In her statement to the police,
    she said that she first went for wine, leaving the appellant and the
    complainant together in the basement alone, and then the complainant came
    upstairs.  The trial judge found this was a significant inconsistency, as it
    took off the table a period of time when the assault could have occurred.

[8]

The appellant submits that the inconsistency was insignificant, given
    the complainants consistent story that the assault occurred during the first
    part of the movie.  The appellant further submits that the trial judge erred by
    finding that the assaults might have occurred after the movie, a time
    completely at odds with the complainants evidence.

[9]

We are unable to give effect to this ground of appeal for the following
    reasons.

[10]

First,
    we agree with the central point made by the respondent, namely, that the issue was
    neither whether the touching occurred nor when it occurred, but rather whether
    it was the complainant or the appellant who instigated the touching.  According
    to the appellant, he and the complainant were alone in the basement before his
    wife came down, and it was the complainant who took his hand to her breasts.  Even
    on the appellants own evidence, there was sexual touching at some point on
    both occasions.

[11]

Second,
    the trial judge gave full reasons for rejecting the evidence of the appellants
    wife.  The trial judge found that the appellants wife was so persuaded that
    her husband could not have committed these offenses that, even if she was not
    deliberately attempting to mislead the court, her evidence could not be trusted.
     The inconsistency between her police statement and the evidence she gave at
    trial was simply an example of that phenomenon.

[12]

Third,
    we do not agree with the submission that the trial judge convicted the
    appellant on the theory that the assaults might have   occurred after the movie
    concluded and while the wife was getting a glass of wine.  The trial judge was
    clear in her acceptance of the complainants version of events.

[13]

We
    add here a point that carried significant weight with the trial judge. The
    appellants evidence that the nine-year-old complainant had initiated sexual
    conduct with him was implausible and was made even more implausible by his
    failure to report the complainants highly inappropriate conduct to his wife or
    the complainants parents.

(2)

Did the trial judge fail to apply the
W.(D.)
test?

[14]

The
    appellant submits that while the trial judge stated that the defendants
    evidence was insufficient to raise a reasonable doubt, she failed to consider
    whether the evidence of the appellants wife and daughter was sufficient to
    raise a reasonable doubt.

[15]

We
    disagree.  While perhaps the trial judge could have explained this point more
    fully, in our view, paragraphs 58 and 60 of her reasons are sufficient.  There,
    she evaluated the totality of the evidence, including the evidence of the
    appellant, his wife, and a friend of the appellant who provided character
    evidence.  She concluded: I find that on the totality of all the evidence, the
    crown has discharged its onus beyond a reasonable doubt.

(3)

Did the trial judge err by failing to deal with
    evidence as to the appellants apparel?

[16]

The
    complainant testified that the appellant was wearing black or navy blue Joe
    Boxer shorts when the assaults occurred.  The appellant denied wearing boxer
    shorts on the two occasions, a denial supported by his wife and daughter who
    testified that he was not in the habit of wearing boxer shorts around the
    house.  The appellant introduced into evidence a pair of Joe Boxer shorts that
    he owned.  Those shorts had a dark blue waistband, but the fabric was plaid
    rather than black or navy blue.  The trial judge did not specifically address
    this point in her reasons.

[17]

While
    it would have been preferable had the trial judge done so, in the context of
    this case and given the balance of the evidence, we are not persuaded that the
    trial judges failure to deal with this point is fatal to the convictions. The
    issue of the appellants apparel was peripheral, the discrepancy between the
    complaints description of the shorts and the shorts produced by the appellant
    was not great and, given the balance of the evidence, we are satisfied that
    this evidence would not have impacted the trial judges credibility findings.

(4)

Did the trial judge misapprehend the
    significance of video evidence of the hammock?

[18]

The
    appellant introduced video evidence that showed a hammock
    in a position where it could be seen by the appellants wife from their house.  In
    his testimony, the appellant relied on the video to refute the invitation to
    sexual touching allegation by suggesting that he would not have done anything
    untoward from a position where he could readily be seen by his wife.  However, in
    cross-examination, the appellant admitted that the position of the hammock
    shown in the video was different from its location at the relevant time.  The
    trial judge found this to be a deliberate attempt to mislead the court, a
    finding that she used to support her rejection of the appellants evidence.

[19]

The
    appellant submits that the trial judge failed to take into account that a
    videographer arranged by the appellants lawyer, not the appellant, who had
    prepared the video.

[20]

We
    see no merit in this submission.  Knowing that the video did not show the true
    position of the hammock on the day in question, the appellant nonetheless
    relied on the video to support his story.  It was open to the trial judge to
    find that, whoever prepared the video, the appellant had testified in a manner
    that he knew to be misleading and that this bore directly upon his overall
    credibility.

Conclusion

[21]

For
    these reasons, and despite the very capable argument advanced on behalf of the
    appellant by Mr. Addario, the appeal is dismissed.

Released: Aug. 31, 2012

KF                                                                              K.
    Feldman J.A.

Robert
    J. Sharpe J.A.

Ducharme
    J.A.


