



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. V.J., 2019 ONCA 86

DATE: 20190207

DOCKET: C62787

Sharpe, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

V.J.

Appellant

Lori Anne Thomas, for the appellant

Linda Shin, for the respondent

Heard and released orally: February 5, 2019

On appeal from the conviction entered on December 11,
    2015 by Justice Jane Ferguson of the Superior Court of Justice, sitting without
    a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault, sexual interference and
    invitation to sexual touching following a judge alone trial. The complainant is
    the appellants stepdaughter. The alleged abuse occurred over a ten-year
    period. The appellant did not testify but he called a defence attempting to
    establish that, during the entire ten-year period, he was never alone with his
    stepdaughter and that he had no opportunity to abuse her.  The appellant also
    sought to establish that his stepdaughter had a motive to fabricate the abuse
    arising out of the conflict with the appellant concerning chores and her living
    arrangements.

[2]

The no opportunity defence essentially collapsed when the complainants
    mother admitted that the appellant had been alone with the complainant on
    occasion. The Crown led evidence of a prior consistent statement to rebut
    recent fabrication.

[3]

In her factum, the appellants counsel raises five grounds of appeal
    discussed below.  In oral argument, counsel focused on three grounds: motive to
    lie; recent fabrication; and collusion.

1.       Failure to consider material evidence relating to the
    credibility of the complainant

[4]

We do not accept the submission that the trial judge erred by failing to
    resolve material contradictions between the evidence of the complainant and the
    appellants daughter L.J. The trial judge did consider L.J.s evidence and
    found that, for the most part, it corroborated that of the complainant. The
    most significant alleged discrepancy related to the so-called cottage incident
    where the appellant allegedly exposed himself. While L.J. denied that she had
    seen the appellant expose himself, she admitted that she could have uttered the
    words reported by the complainant in relation to something else. Other alleged
    contradictions related to the appellants opportunity to commit these assaults
    and whether L.J. had witnessed any assaults. As already noted, the lack of
    opportunity defence was weak, and even if L.J. did not witness the offenses
    they could well have occurred.

2.       Assessing the complainants evidence according to the
    standard applicable to young persons

[5]

The trial judge referred at length to the leading cases establishing the
    test for assessing the evidence of an adult witness as to events that occurred
    when the witness was a child. We do not agree that the trial judge erred in law
    by misapplying that test and treating the complainant as a child witness. She
    provided detailed reasons explaining why she accepted the complainants
    evidence, explaining that minor inconsistencies and discrepancies were to be
    expected when describing a pattern of abuse over the course of a lengthy period
    during which the complainant was a child. That did not amount to treating the
    complainant as a child witness.

3.
W.(D.)
and uneven analysis of the evidence

[6]

We see nothing in the reasons of the trial judge to indicate that she
    applied a different standard of scrutiny to the appellant or made a
R. v. W.(D.)
,
[1991] 1 S.C.R. 742,
error regarding to
    the defence evidence. The trial judge explained why the evidence of the
    complainants mother as to lack of opportunity did not stand up to scrutiny and
    why she did not find the evidence of L.J. or the other defence witness, S.L.,
    raised a reasonable doubt. In the circumstances of this case, we do not agree
    that anything more was required.

4.       Motive to fabricate and 5. Collusion

[7]

We see no basis to interfere with the trial judges rejection of the
    complainants alleged motive to fabricate or her finding that there had been no
    collusion between the complainant and the friend to whom she had complained of
    the alleged abuse. The friend provided an account of what the complainant told
    her and testified there had been no collusion of any kind. The trial judge
    accepted the friends evidence.  Particularly in light of the rather distant
    relationship between the complainant and friend by the time of trial, the
    finding of no collusion was amply supported.

Disposition

[8]

For these reasons, the appeal from conviction is dismissed.

Robert
    J. Sharpe J.A.

M.L.
    Benotto J.A.

David
    Brown J.A.


