



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Roy, 2017 ONCA 30

DATE: 20170117

DOCKET: C60927

Simmons, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michel Roy

Appellant

Michael A. Crystal, for the appellant

Peter Scrutton, for the respondent

Heard: October 11, 2016

On appeal from the conviction entered on June 15, 2015 by
    Justice Laurie Lacelle of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant appeals against convictions for touching a person under
    the age of 16 years for a sexual purpose in relation to the complainant J.S.
    and sexual assault in relation to the complainant E.J.
[1]

BACKGROUND

[2]

The complainants were friends  15 and 16 years old, respectively  at
    the time of the events. They were sleeping together on a table that converted into
    a bed in the appellants camping trailer when the events occurred. They had attended
    a birthday party the previous evening at the campground where the appellants
    trailer was located. J.S.s mother, J.B., knew the appellant from high school.
    A close friend of hers, D.G., was a good friend of the appellants. Through
    this connection, arrangements were made for J.B., D.G. and the complainants to
    stay overnight at the appellants campsite so the complainants could attend the
    party. J.B. had not seen the appellant in years. The complainants had not
    previously met the appellant.

[3]

The complainants went to bed in the early morning hours on the day the
    events occurred. J.B. slept on a couch in the trailer a few steps diagonally
    across from where the complainants were sleeping; the appellant and his
    girlfriend were to sleep in a bedroom in the trailer; D.G. slept outside the
    trailer, in a truck.

[4]

J.S. testified that she woke up around 4 a.m. feeling a pushing and
    rubbing sensation on her stomach. Her shirt was pulled up just below her
    breasts and the appellant was rubbing her stomach with his hand in a circular
    motion. She pulled a blanket over her and turned her Blackberry on to let him
    know she was awake. Within a short time, after her Blackberry light went out,
    J.S. saw the appellant touch E.J., first, by putting his hand down her pants on
    her butt area, then by putting his hand down the front of her pants.

[5]

E.J. testified that she woke up to the feeling of the appellants hand
    down the back of her pants. She rolled over; the appellant moved away and he
    then put his hand down the front of her pants. His hand stopped short of her
    genital area because she moved. She then grabbed her iPod and the appellant moved
    away.

[6]

A short time later, E.J. woke J.B. up and told her the appellant touched
    us. J.B. started screaming at the appellant and calling him names. The
    confrontation continued outside of the trailer. The appellant got into his
    vehicle and drove away. The complainants and J.B. drove away around the same
    time. When they got home, J.B. called the police. The complainants and J.B.
    went to the police station and gave statements later the same day.

[7]

In addition to the complainants, J.B., the appellant, D.G. and two other
    defence witnesses testified at trial.

[8]

At the close of the Crowns case, the trial judge dismissed a Crown
    application to admit, as similar fact evidence, evidence concerning a prior
    sexual assault by the appellant on his stepdaughter.

[9]

In his evidence, the appellant denied that the events described by the
    complainants had occurred. He and the other defence witnesses testified that
    both complainants had been drinking during the evening of the birthday party;
    he and some of the defence witnesses also claimed the complainants had smoked
    marijuana. Further, both the appellant and D.G. testified that over the course
    of the evening, J.B. had been behaving unusually and talking about protecting
    the complainants.

[10]

In closing argument, in addition to relying on the appellants denial,
    defence counsel at trial pointed to numerous alleged internal and external inconsistencies
    in the evidence of the complainants and J.B. and submitted that their evidence
    was not sufficiently reliable to support a conviction. He also argued that the
    witnesses had obviously discussed the events  shortly after they occurred,
    during the car ride home and once they were home  and asserted that the Crown
    had failed to disprove collusion or inadvertent tainting, thus rendering the
    evidence inadmissible across counts.

[11]

In her reasons for judgment, the trial judge ruled that the trial
    evidence was admissible across counts. She rejected defence evidence asserting
    that J.B. behaved oddly that evening. Although she commented on some idiosyncrasies
    in the appellants evidence, relying on
R. v. J.J.R.D.

(2006), 215
    C.C.C. (3d) 252 (C.A.), leave to appeal to SCC refused, [2007] S.C.C.A. No. 69,
    she rejected the appellants denial of the allegations essentially because she
    was satisfied that the Crowns evidence proved the elements of the offences beyond
    a reasonable doubt.

ISSUES AND DISCUSSION

[12]

The appellant raises three main issues on appeal.

[13]

First, the appellant argues that the trial judge placed undue emphasis
    on the complainants demeanour and failed to adequately scrutinize the
    reliability of the Crown's evidence. Concerning the latter issue, the appellant
    points to the multiple alleged discrepancies in the evidence of the
    complainants and J.B. that were raised at trial and asserts, in effect, that
    those discrepancies and what he claims was an evolution in the complainants
    stories should have given rise to a reasonable doubt.

[14]

We do not accept these submissions. The trial judge gave extensive
    reasons in which she not only reviewed the evidence of each witness but also
    analyzed the defence submissions concerning alleged discrepancies and
    inconsistencies in the complainants evidence and the evidence of J.B. After
    reviewing the alleged discrepancies and inconsistencies, the trial judge was
    not satisfied that any of them detracted from the complainants' core assertions
    about what had happened to them. In any event, we agree with the trial judge
    that the alleged contradictions were either not truly contradictory, or related
    to peripheral matters. On the entirety of the evidence, the allegations
    remained intact:
R. v. Barua
,
2014 ONCA 34 at paras. 7-8. This
    was the trial judge's call to make. She saw and heard the witnesses testify.
    She was uniquely positioned to assess both the reliability and credibility of
    their evidence.

[15]

Further, on our review of the record, the appellants assertion that
    there was an evolution in the complainants stories, which demonstrated the
    likelihood of collusion or tainting and even fabrication, is not borne out by
    the record and the trial judges findings concerning the complainants
    evidence. For example, the trial judge disagreed with the defence assertion
    that the tenor of E.J.s evidence at trial was that there was one continuous
    touching of her body by the accused and found that E.J.s evidence was not
    inconsistent with her police statement describing two touching events. She
    also found that E.J. was initially touched as she was waking up and that that
    fact accounted for some of the alleged inconsistencies in E.J.s account.

[16]

Based on our review of the record, these findings were open to the trial
    judge. The trial judge saw and heard E.J. testify. While there was some
    inconsistency in E.J.s account of the events at the trial, what the trial judge
    found significant was her account of how and where she was touched and not
    peripheral details. In any event, in our view, the fact of inconsistencies in
    E.J.s evidence at the trial does not support the appellants theory that she
    modified her evidence to match J.S.s version of events. Had that been her
    intention, she would have given a consistent version of events at trial that
    matched J.S.s version. As noted by the trial judge, inconsistencies in the
    complainants evidence at trial supported the finding that their evidence was
    not the product of either deliberate or unintentional collusion.

[17]

Finally, on our reading of the trial judge's reasons, she did not focus
    unduly on demeanour but rather gave extensive and detailed reasons analyzing
    the evidence of the various witnesses. Concerning the complainants, her finding
    that they were good witnesses was much more focused on the fairness of their
    evidence rather than demeanour.

[18]

Therefore, we do not agree that the trial judge placed undue emphasis on
    the complainants demeanour and failed to adequately scrutinize the reliability
    of the Crown's evidence.

[19]

Second, the appellant argues that the trial judge erred in permitting
    the evidence to apply across counts where there was evidence of collusion. In
    the alternative, if the trial judge was entitled to apply the evidence across
    counts, the trial judge erred in failing to caution herself to treat the
    evidence with care in assessing the weight to be afforded to it because of the
    possibility of collusion.

[20]

We do not accept this argument. The trial judge recognized that discussions
    between the Crown witnesses were natural given the circumstances of this
    case. However, she found nothing in the individualized accounts of J.S. and
    E.J. to suggest any tainting of their evidence had occurred as a result of
    their communications with one another. On our reading of her reasons, the
    trial judge considered the issue of collusion, both in relation to the
    admissibility of the evidence across counts as well as in relation to her
    ultimate assessment of the evidence. In the end, she found no evidence to
    support a finding of deliberate collusion and no evidence to support even a
    motive for the girls to behave in that fashion. Noting that the defence
    argument at trial focused on unintentional collusion, the trial judge found
    nothing in their accounts to support that conclusion but rather that the
    inconsistencies in their account support the finding that their evidence was
    not the product of either deliberate or unintentional collusion. Once again,
    these were the trial judges calls to make. We see no basis on which to
    interfere with her conclusions. We note as well that J.S.s eyewitness evidence
    that she saw the appellant assault E.J. was not similar act evidence and did
    not require a threshold admissibility inquiry.

[21]

Third, the appellant argues that the trial judge misapplied the test in
W.(D
.)
[2]

and failed to provide adequate reasons for her findings of guilt. The appellant
    points in particular to the following paragraphs of the trial judges reasons:

Giving consideration to the evidence of the accused in the
    context of all of the evidence heard at trial, I do not believe his account,
    nor does it leave me with a reasonable doubt.
The
    accuseds denial of these events is difficult to accept in the face of the
    evidence of two witnesses who describe him hovering over and touching them.

The evidence of the accused also cannot be reconciled with the
    one fact that every witnesses in this trial agrees about, which is that J.B.
    began yelling and screaming at the accused and accusing him of touching the
    girls in the early morning hours of July 20
th
, 2013. There can be no
    doubt that J.B. behaved in this fashion.
On the account
    of the accused, this conduct by J.B. makes no sense at all. It only makes sense
    in the context of the evidence given by J.S., E.J. and J.B.
[Emphasis
    added.]

[22]

In particular, the appellant takes issue with the trial judges
    rejection of his evidence based on her acceptance of the complainants evidence
    in the context of a case where he alleges there were numerous discrepancies and
    inconsistences in the Crowns evidence and where, unlike the situation in
J.J.R.D
.
,
    there was nothing to corroborate or support the complainants allegations. The
    appellant also argues that the fact that J.B. yelled at the appellant after
    learning about the alleged incident has no bearing on whether the touching
    occurred and does not in any way negate the appellants theory that the
    complainants fabricated their allegations.

[23]

We do not accept these submissions. For the reasons we have already
    explained, we are satisfied that the trial judge addressed the appellants
    arguments concerning discrepancies, inconsistencies and tainting. Both this
    court and the Supreme Court of Canada have made it clear that a considered and
    reasoned acceptance beyond a reasonable doubt of the truth of conflicting
    credible evidence is a sufficient basis for rejecting an accuseds evidence:
R.
    v. R.E.M
.
, 2008 SCC 51, 2008 S.C.R. 3, at para. 66;
J.J.R.D
.
,
    at para. 53.

[24]

Finally, as we read her reasons, the trial judge had rejected the
    possibility of fabrication or collusion before pointing to J.B.s reaction,
    which she found supported the complainants version of the events. The
    paragraph of the trial judges reasons on which the appellant relies is an
    introductory paragraph that foreshadows her subsequent reasons.

[25]

We do not give effect to this ground of appeal.

DISPOSITION

[26]

Based on the foregoing reasons, the appeal is dismissed.

Janet Simmons
    J.A.

G. Pardu J.A.

B.W. Miller J.A.





[1]

The trial judge found the appellant guilty of a third count,
    sexual assault in relation to the complainant J.S. Although the trial judges
    sentencing reasons are not before us, the sexual assault charge in relation to
    J.S. arose from the same events as the sexual touching charge. Both counsel
    acknowledge that the sexual assault charge in relation to the complainant J.S.
    would have been stayed pursuant to
R. v. Kienapple
, [1975] 1 S.C.R. 729.



[2]

R. v. W.(D.)
,
[1991] 1 S.C.R. 742.


