



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    that could identify the complainant or a witness shall not be published in any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. T.H.,
    2014 ONCA 906


DATE: 20141217

DOCKET: C56068

Weiler, Feldman and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.H.

Appellant

Timothy E. Breen, for the appellant

Mabel Lai, for the respondent

Heard and released orally: December 10, 2014

On appeal from the conviction entered on July 20, 2012 by
    Justice Barry Matheson of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault, sexual interference and
    invitation to sexual touching in relation to two of his nieces, D. and H. He
    was also found guilty of making and possessing child pornography. He was
    acquitted of all charges relating to his son and his nieces C. and B. He was
    sentenced to four years in prison.

[2]

The appellant raises the following grounds of appeal:

(1)

The reasons for judgment are insufficient;

(2)

The separate counts should not have been considered similar fact       evidence;

(3)

The trial judge effectively reversed the burden of proof; and

(4)

The trial judge misapprehended the evidence.

[3]

On appeal, the appellant concedes that there is no issue that H. was
    sexually assaulted. Her evidence is supported by the circumstantial evidence of
    a picture of H. with an adult male penis between her legs on the appellants
    computer. There was also an inappropriate picture of H. that had been downloaded
    from a camera belonging to the appellant. The images had been deleted and would
    not have been accessible to the average user.

[4]

The appellant submits that in relation to H. the issue is the identity
    of the adult perpetrator. In this regard, the overarching position of the
    appellant is that the identification of the appellant by D. and H. was tainted
    by discussion within the family suggesting he was a child molester. These discussions
    took place between Christmas Eve 2008, when an inappropriate image of the
    complainant D., age 13, was found on the appellants camera and January 8, 2009
    when H., age 6, identified the appellant as the perpetrator. The appellant
    submits that the evidence of H. and D. (who disclosed about a week later) is
    suspect because of the tainting influence of discussions within the family
    after Christmas Eve. He further submits that because the children also used his
    camera, and other adults had access to his computer, the identification of the
    appellant as the perpetrator was not proven beyond a reasonable doubt.

[5]

We reject these submissions. Although this was the position of the
    defence at trial, in submissions we note that H. was never confronted in cross-examination
    with the suggestion that she had misidentified the appellant. Nor was the
    suggestion put to her that she may have felt pressured into identifying the
    appellant because of the discussions that took place within the family. Nor
    were any such questions put to D. We now propose to deal with the specific
    grounds of appeal seriatim.

(1)

Were the reasons for judgment sufficient?

[6]

[R]easons are reviewed for their functionality, not their eloquence,
    and must be examined in the context of the entire proceeding, especially the
    nature of the evidence heard and the arguments advanced:
R. v. J.J.B.
,
    2013 ONCA 268, at paras. 20 and 32.

[7]

Though the trial judges reasons are not a model of clarity, his reasons
    adequately explained, in the context of the record as a whole, why he acquitted
    the appellant in respect of L., B. and C. and why he convicted the appellant in
    respect of H. and D. Regarding the first three complainants, the trial judge
    pointed out numerous inconsistencies. Conversely, he found H.s evidence consistent.
    There was photographic corroboration of her abuse and she was steadfast in her
    assertion that the appellant was the perpetrator. H. was not shaken on
    cross-examination. Regarding D., though her evidence was inconsistent in
    several respects that did not impact the main issues, the trial judge did not
    find that to be unexpected, based on his self-instruction on the approach to
    childrens evidence mandated by the Supreme Court:
R. v. B.(G.)
,
    [1990] 2 S.C.R. 30. Though

D. denied that the appellant took
    inappropriate pictures of her, she did testify that he took pictures of her
    almost every time he saw her on a silver digital camera. Rachels evidence as
    to the photograph and the camera supported D.s testimony.

[8]

The reasons are adequate. They are capable of appellate review.

(2)

Did the trial judge err by considering the evidence of the complainants
    as similar fact evidence?

[9]

Although the appellant suggests that the similar fact application was
    abandoned, the Crown simply acknowledged that caution was advisable given the
    potential for tainting. The appellant submits that similar fact reasoning was
    not available on the cross-counts respecting H. and D. We disagree. H. and D.
    described sexual offences with similar characteristics that strongly supported
    the improbability of coincidence. These similarities included their
    relationship to the appellant, using family events to provide opportunity,
    using his bedroom as a venue, having the girls touch his penis, and taking
    photographs of them on his camera. H. and D. also said that the appellant
    touched their vaginas and on more than one occasion touched his penis to their
    vaginas. Although the trial judge erred when he included as a circumstance that
    the appellant sometimes licked his finger in relation to touching their
    vaginas, this error does not detract from his finding that the appellant
    touched their vaginas. This was a judge-alone trial on a multi-count
    indictment. Moral and reasoning prejudice was minimal. The Crown established on
    a balance of probabilities, that the evidence was probative of live issues at
    trial and that its probative value outweighed its prejudicial effect.

[10]

This
    ground of appeal is dismissed.

(3)

Did the trial judge effectively reverse the burden of proof and
    misapprehend the evidence?

[11]

The
    appellant submits that, after instructing himself on the
R. v. W.(D.)
,
[1991] 1 S.C.R. 742,
analysis, the trial
    judge skipped the second step of that analysis. We are satisfied that, read as
    a whole, the trial judges reasons indicate that although he rejected the
    appellants evidence, it also did not raise a reasonable doubt.

(4)

Did the trial judge misapprehend the evidence?

[12]

The appellant submits that the trial judge misapprehended the evidence when
    he stated in his reasons, It is not a criminal offence to possess adult
    pornography yet apparently it was erased and was only retrievable by the police
    using their special equipment. The erasure of these pictures by Travis is an
    indication of his state of mind. The appellant submits that the trial judge is
    saying that Travis admitted erasing the pictures.

[13]

We
    disagree that this is the import of the trial judges comment. The trial judge was
    making a finding in the context of all of the evidence, including the evidence
    of the expert, that the appellant was the person who had erased the images.

[14]

The appellant also asserts that the trial judge misapprehended an
    inconsistency in his attitude towards the children. The appellant says he was
    consistent on the point that he avoided the children at family gatherings because
    they were undisciplined. We do not agree. The appellant acknowledged that he
    would be in his room with the female children playing and dancing and that he
    would go into L.s room when the other children were there. The trial judge did
    not misapprehend the evidence in any significant way.

[15]

Accordingly,
    for the reasons given, the appeal is dismissed.

K.M. Weiler J.A.

K. Feldman J.A.

M.L. Benotto J.A.


