



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Langevin, 2016 ONCA 412

DATE: 20160530

DOCKET: C60085

Watt, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Langevin

Appellant

Daniel Langevin, acting in person

Matthew Gourlay, duty counsel

Craig Harper, for the respondent

Heard: May 9, 2016

On appeal from the conviction entered on November 28,
    2014 and the sentence imposed on January 21, 2015 by Justice
Nancy
    M. Mossip
of the Superior Court of Justice.

ENDORSEMENT

[1]

After a trial before a judge of the Superior Court of
    Justice sitting without a jury, the appellant was convicted of counts of sexual
    interference and sexual assault arising out of the same incident. The trial
    judge applied the principles of
Kienapple v. R.,
[1975] 1 S.C.R. 729 and entered an interim stay of
    the conviction of sexual assault.

[2]

The trial judge
    sentenced the appellant to imprisonment for a term of 12 months to be followed
    by a period of probation for 2 years. The sentence imposed also included
    several ancillary orders.

THE BACKGROUND FACTS

[3]

The events upon which
    the Crown relied to establish the appellants guilt are said to have occurred
    in the cab of his truck during the evening of Canada Day, 2013 when only the
    appellant and complainant were inside the truck. The vehicle was parked in an
    area adjacent to a housing complex.

[4]

The conduct alleged to
    constitute the offences charged consisted of hugging and kissing. Both the
    appellant and complainant were fully clothed. The appellant was 44 years old.
    The complainant was 11.

The Case for the Crown

[5]

The case for the Crown
    at trial consisted of the testimony of three adult witnesses who recounted
    their observations of the conduct of the appellant and complainant in the cab
    of the appellants truck around 9 p.m. on Canada Day, 2013.

[6]

Each witness had an
    unobstructed view of the relevant events. Each moved closer to the truck to
    confirm their initial observations. Each described repeated kissing on the
    lips, accompanied by hugging. Each, in his or her own way, characterized the
    manner in which the appellant and the complainant kissed. One described it as
    like he would kiss his wife. A second characterized it as not the way in which
    an adult would kiss a child. And the third likened it to the way in which a
    boyfriend and girlfriend would kiss.

[7]

The complainant was not
    called as a witness for the Crown.

The Defence Case

[8]

The defence case
    comprised the testimony of the appellant, the complainants mother and the
    complainant.

[9]

The complainant and her
    mother gave evidence that the complainant returned to their home at around 5:00
    or 5:30 p.m. on Canada Day, 2013. She had been with the appellant during the
    afternoon but he brought her home around meal time.  The complainant remained
    at home for the balance of the evening.

[10]

The appellant
    acknowledged that he gave the complainant a peck on the nose and a hug when
    she left his truck on the afternoon of Canada Day, 2013 to join others,
    including a Crown witness, at a picnic table. She remained at the picnic table
    for about an hour, then returned to his truck. The appellant drove her home,
    arriving there at about 5 p.m. He was not with her later in the evening.

[11]

The appellant denied
    kissing the complainant on the lips. He also said that one of the witnesses who
    testified for the Crown was not in the vicinity on Canada Day. He rejected the
    claim of another Crown witness that she had approached the cab of his truck and
    had asked what he was doing.

[12]

The complainant
    acknowledged that the appellant hugged her and kissed her forehead while they
    were seated in the cab of his truck. She denied talking to one of the Crown
    witnesses at the picnic table.

The Positions of the
    Parties at Trial

[13]

Trial counsel for the
    Crown (not Mr. Harper) urged the trial judge to believe the testimony of the
    three adult witnesses about what they saw taking place in the cab of the
    appellants truck. Their view was unobstructed. They were independent witnesses
    who bore neither the appellant nor the complainant any animus. Any
    inconsistencies in their evidence were beside the point of the core features of
    their testimony. None were cross-examined about the substance of their
    allegations.

[14]

The trial Crown
    entreated the trial judge to reject, as unworthy of belief, the appellants
    claim that he was not with the complainant after 5 p.m. on Canada Day and, at
    all events, did not engage in the behaviour they described at any time.
    Further, the trial Crown submitted, the complainant was not a reliable witness,
    her evidence contaminated by her unwavering dedication to the appellant. For
    similar reasons, the trial Crown invited the trial judge to reject the evidence
    of the complainants mother whose testimony was coloured by her own desire to
    rekindle her relationship with the appellant.

[15]

Trial counsel for the
    appellant (not Mr. Gourlay) advanced three discrete arguments to the trial
    judge.

[16]

First, counsel submitted
    that inconsistencies on material issues in the testimony of the three
    eyewitnesses left the case for the Crown well short of the standard of proof
    required in a criminal case.

[17]

Second, counsel argued
    that the appellants testimony, indeed the defence evidence as a whole, was
    credible and warranted an acquittal on either or both of the first or second
    step of
R. v. W.(D.),
[1991]
    1 S.C.R. 742.

[18]

Third, counsel contended
    that even if the trial judge were to accept the eyewitness testimony adduced by
    the Crown, the evidence failed to establish an essential element of each
    offence charged  that the conduct occurred in circumstances of a sexual nature
    or was for a sexual purpose.

THE APPEAL FROM CONVICTION

The Argument

[19]

In this court, as duty
    counsel, Mr. Gourlay raised a single ground of appeal. He submitted that the
    trial judge failed to adequately analyze the evidence to determine whether it
    established the essential elements of each offence charged. He fastens upon the
    requirement in sexual assault that the assault occur in circumstances of a
    sexual nature such that the sexual integrity of the complainant is violated. In
    respect of the count charging sexual interference, Mr. Gourlay contends that
    the trial judge erred in failing to adequately consider whether the evidence
    established that the kissing was for a sexual purpose as required by s. 151, or
    occurred in circumstances of a sexual nature as required by s. 271 of the
Criminal
    Code
.

Discussion

[20]

The focal point of the
    submissions on behalf of the parties is a single paragraph in the lengthy
    reasons of the trial judge. It is helpful to begin by setting out that
    paragraph before turning to a consideration of its adequacy.

The Reasons of the
    Trial Judge

[21]

The trial judge began
    her reasons with a lengthy witness-by-witness summary of the evidence adduced
    at trial, followed by a recital of the positions advanced by the parties in
    their closing arguments. Reminding herself of the principles stated in
W.(D.)
and other authorities that have followed its lead,
    the trial judge explained how she applied those principles to the evidence
    adduced at trial. In general terms, she accepted the evidence of the
    eyewitnesses about the fact, nature and circumstances of the kissing in the
    appellants truck and rejected the defence evidence that the conduct of which
    the eyewitnesses testified never took place.

[22]

The trial judge
    concluded her reasons by stating her conclusion about the adequacy of the
    evidence to establish the essential elements of sexual interference and sexual
    assault. She said:

On the whole of the
    evidence I am satisfied beyond a reasonable doubt of the guilt of D.L. of the
    two counts in the indictment. There can be no doubt that my acceptance of the
    Crown witnesses testimony, in particular that of Ms. Clavette who saw at close
    proximity, D.L. and E.B. hugging and kissing on the lips, like a boyfriend and
    girlfriend, that a sexual assault took place, and that the touching of E.B. by
    D.L. by hugging and kissing E.B. on the lips, as described, was touching for a
    sexual purpose. Viewed objectively, in the light of all the circumstances, it
    is clear that the conduct of D.L. in hugging and kissing E.B. as described
    constituted an assault of a sexual nature and this touching as described was
    for a sexual purpose.


Analysis

[23]

As we will explain, we
    would not give effect to the submissions of duty counsel.

[24]

We begin with the
    observation that whether the kissing that the trial judge found occurred here
    was for a sexual purpose, or took place in circumstances of a sexual nature,
    was largely a question of fact for the trial judge to determine by an
    examination of all the circumstances. As with any essential element of an
    offence, proof of these essential elements may be made by direct evidence, by
    circumstantial evidence or by both types of evidence in combination.

[25]

Second, appellate courts
    are disentitled to interfere with the findings of fact made and the factual inferences
    drawn by a trial judge unless those findings are clearly wrong, unsupported by
    the evidence or otherwise unreasonable:
R. v. Clark
, [2005] 1 S.C.R. 6, at para. 9. We are unable to
    conclude that the trial judge made any error of law or a palpable or overriding
    error fact with respect to the sexual purpose of the kissing or the sexual
    nature of the circumstances in which it occurred.

[26]

Third, this is not a
    case of a single peck on the cheek, or even a solitary kiss on the lips. What
    the trial judge found occurred here were repeated acts of kissing between a 44
    year old man and an 11 year old girl characterized by witnesses as similar to
    those between spouses or lovers. This finding of fact, available on the
    evidence adduced at trial, was sufficient to sustain a finding of sexual
    purpose on the count of sexual interference and meet the objective standard
    required for sexual assault.

[27]

Fourth, while the
    reasons of the trial judge on this issue may fairly be characterized as
    economical, they do not foreclose meaningful appellate review when read as a
    whole. Recall as well that the claim of inadequate proof of the sexual nature
    of the kissing was not the principal defence advanced at trial. The defence, supported
    by the sworn testimony of the appellant, the complainant and her mother was
    that neither the appellant nor the complainant were at the place described by
    the witnesses when the kissing was alleged to have occurred. While this defence
    does not reduce the Crowns burden of proof or lessen the standard of proof
    required, it does put the reasons of the trial judge on the issue in their
    proper perspective on appellate review.

[28]

The appeal from
    conviction is dismissed.

THE APPEAL FROM SENTENCE

[29]

The appeal from sentence was not vigorously pressed. We find no error in
    the sentence imposed.

[30]

Leave to appeal sentence is granted, but the appeal from sentence is
    dismissed.

David Watt J.A.

M. Tulloch J.A.

Grant Huscroft J.A.


