



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    the complainant or a witness shall not be published in any document or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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. J.W., 2014 ONCA 628

DATE: 20140909

DOCKET: C57070

Hoy A.C.J.O., Gillese and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.W.

Applicant/Appellant

Paul Calarco, for the appellant

Michael Fawcett, for the respondent

Heard: September 4, 2014

On appeal from the conviction entered on November 29,
    2012 by Justice Thomas A. Bielby of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant was found guilty of three sexual offences and sentenced to
    three and a half years imprisonment.

[2]

Initially, the appellant appealed against both conviction and sentence
    but he later abandoned his appeal against sentence.  His appeal against
    conviction rests largely on his submission that the trial judge erred in
    assessing the credibility and reliability of the complainant.

BACKGROUND IN BRIEF

[3]

The complainant was born in 1992.  The appellant was born in 1983. They
    met while playing road hockey in their neighbourhood.  At that time, the
    complainant was 9 or 10 and the accused was 17 or 18 years old. Within a year,
    the complainant and some other boys, including his two older cousins, began
    watching movies, playing video games and sleeping over at the appellants home,
    where he lived with his grandmother.

[4]

In 2009, the complainant alleged that between 2001 and 2005, while he
    was under the age of 14, a number of sexual incidents occurred between him and
    the appellant, all in the appellants bedroom when the other boys were not
    present. The appellant testified at trial and denied engaging in any sexual
    acts with the complainant.

[5]

At some point, the complainant stopped visiting and speaking with the
    appellant, but later resumed those activities.

[6]

In his reasons for conviction, the trial judge stated that both the
    complainant and the appellant gave their testimony in a straightforward and
    direct manner, answered questions without hesitation, and were not caught in
    any material inconsistency or shaken on cross examination.  He then gave
    reasons for accepting the complainants testimony and rejecting that of the
    appellant.

THE ISSUES

[7]

The appellant submits that the trial judge erred by:

1.

Overemphasizing emotional demeanour;

2.

Equating the level of detail of the complainants evidence with
    reliability;

3.

Failing to address the inconsistent explanations that the complainant
    gave for failing to disclose earlier;

4.

Treating speculative responses from the appellant as indications that
    the complainants testimony was reliable; and

5.

Applying different levels of scrutiny to the evidence of the Crown and
    the defence.

ANALYSIS

[8]

We begin by noting that the appellant takes no issues with the trial
    judges articulation of the relevant legal principles.  He submits that the
    trial judge erred in his application of those principles.

[9]

We do not agree.  In our view, the trial judge committed none of the
    alleged errors.

1.

With regard to the first issue, the trial judge was entitled to consider
    demeanour as one aspect of his assessment of credibility.  The trial judge did
    not treat demeanour as dispositive but, rather, as one of several reasons for
    believing the complainant.  He gave cogent reasons for accepting the
    complainants evidence, including such things as the opportunity for the events
    to have occurred, and the fact that there was a period of time during which the
    complainant avoided contact with the appellant and stopped going to his home.  In
    relation to opportunity, the trial judge noted that apart from the appellants grandmother,
    the other witnesses testified that the complainant slept overnight, alone, with
    the appellant on numerous occasions.  In relation to the break in contact, he noted
    the corroboration of various witnesses to the fact of the break in contact,
    although they differed on the length of that period.

2.

As for the second issue, contrary to the appellants submissions, the
    trial judge did not equate the detail in the complainants testimony about
    attempted anal sex and incidents of oral sex with reliability.  Rather, the
    trial judge used the level of detail as one indicator of reliability, noting
    that on cross examination no inconsistencies were revealed about those matters.

We see nothing in the
    suggestion that the trial judge implicitly used the lack of detail in the
    appellants evidence to reject it.  Nothing in the reasons supports this
    submission.

3.

We see nothing in the appellants third submission, which is based on the
    varying explanations that the complainant gave for not making an earlier report
    of the abuse.  Those various explanations included almost starting to believe
    it didnt happen, just want[ing] it to go away, thinking it had to be [his]
    fault and trying to forget about it.  Giving a variety of explanations does
    not necessarily mean that they are inconsistent.

4.

The fourth ground of appeal is based on para. 165 of the trial judges
    reasons for conviction, in which the trial judge states that in the appellants
    testimony, the appellant acknowledged that something must have happened to
    the complainant.

The record supports the
    trial judges statement.  For example, in examination in chief, in response to
    a question as to how he felt after learning of the allegations, the appellant
    volunteered that the only thing I could think of is that  someone touched him
    or something like that happened.

5.

We do not accept that the trial judge applied different standards of
    scrutiny to the evidence of the Crown and the defence.  There is nothing to
    suggest that the trial judge did anything other than approach each sides
    evidence with the same careful review.

DISPOSITION

[10]

Accordingly,
    the appeal against conviction is dismissed.  The appeal against sentence is
    dismissed as abandoned.

Alexandra Hoy A.C.J.O.

E.E. Gillese J.A.

J.
    MacFarland J.A.


