



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. L.L., 2022 ONCA 50

DATE: 20220124

DOCKET: C67740

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.L.

Appellant

Jon Doody and Fady Mansour, for the
    appellant

Hannah Freeman, for the respondent

Heard: December 14, 2021

On appeal from the convictions entered
    by Justice Rick Leroy of the Superior Court of Justice on May 29, 2019.

REASONS FOR DECISION

OVERVIEW

[1]

The appellant was convicted of sexual touching of a person under the age
    of 16, invitation to sexual touching, sexual touching while in a position of
    trust, and uttering a death threat. The last three convictions were stayed
    pursuant to the principle in
R. v. Kienapple
,
    [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524. The appellant appeals from his
    conviction.

[2]

The focus of the appellants appeal is narrow. The appellant argues that
    the trial judges use of a short statement he made to the police was tainted by
    legal error.

BACKGROUND

[3]

The convictions stemmed from allegations made by the appellants
    stepdaughter. She alleged that her stepfather had committed a very large number
    of sexual offences over a period of eight years, starting when she was 11 years
    old and ending as she was approaching the age of 19.

[4]

The complainant alleged that her stepfather committed the sexual
    offences at different family residences, as well as in his truck when he was
    driving his stepdaughter around on various matters. The trial judge stated that
    the complainant described about 468 incidents of sexual intercourse in the
    appellants truck, starting when she was 11 or 12 years old. Many of the
    incidents in the truck involved the appellant paying the complainant for sex,
    what the trial judge described in his reasons as the truck routine.

[5]

The complainant testified that the last sexual offence took place on
    July 8, 2014 when she was 18 years old. She recalled the specific date because
    the first anniversary of her relationship with her boyfriend was approaching.
    According to the complainant, the appellant asked her to work with him on a
    driveway sealing job. He picked her up in his truck. After finishing the job,
    he drove the complainant to a rural road, where he stopped the truck on the
    side of the road and asked whether she wanted to perform fellatio. She
    declined. The appellant then offered the complainant $50; she declined and
    asked for more compensation. The appellant agreed, went to the passenger side
    and engaged in sexual intercourse with the complainant. As put by the trial
    judge in his reasons: They dressed and [the appellant] handed [the
    complainant] the sum of $100 and said Nice doing business. He then drove the
    complainant home.

THE APPELLANTS STATEMENT

[6]

The complainant and her mother testified at the trial; the appellant did
    not. However, the trial judge admitted into evidence a very short statement the
    appellant had made to the police.

[7]

The statement arose in the following way. Charges for the offences
    against the complainant were first laid in Québec. A decision was then made to
    charge the appellant in Ontario. OPP Detective Jason Cholette left a message
    with the appellant, identifying himself and requesting a call back. The
    appellant returned the call. Detective Cholette advised him that there were grounds
    for his arrest and attempted to arrange for the appellants arrest and release.
    In the course of his conversation with Detective Cholette, the appellant made
    the following statement, as recorded by the officer in his notebook and as
    repeated by the trial judge in his reasons:

She is 19 not 10. I was sleeping with aunt, wifes sister. She
    was trying to get $4,000 from me. (hereafter the Statement)
[1]


[8]

The voluntariness of the appellants Statement was admitted. The trial
    judge was satisfied that the Statement had been made and the officers notes
    captured the main thrust. The trial judge rejected the defence submission
    that the Statement reflected the appellants spontaneous reaction when first
    confronted with the complainants allegations because by that time the appellant
    was already immersed in criminal proceedings in Québec regarding the same
    issues and therefore knew about the allegations.

[9]

At trial, the defence submitted that the Statement was exculpatory in
    that the appellant admitted to sexual activity when the complainant was 19
    years old, not younger. Although that admission might not be entirely helpful
    for the appellant, it was a sign of his credibility. While the conduct admitted
    might be morally problematic, it was not a criminal offence as it concerned
    conduct when the complainant was 19 years old.

[10]

The
    Crown argued that the Statement was not exculpatory but one that confirmed the
    complainants testimony that she had sexual relations with the appellant that
    continued beyond her 18
th
birthday. The Crown submitted that it
    would not be reasonable for the court to reject the complainants evidence
    about sexual relations with the appellant prior to the age of 18 but use the
    Statement to confirm her testimony about sexual relations after she turned 18
    years old. The Crown submitted:

There has been no part of the narrative
    whatsoever to suggest that all of a sudden, at the age of 18, [the complainant]
    experienced some turn in her relationship with [the appellant], not from [the
    complainant], and not from any of the other witnesses. To the contrary, this
    evidence supports what the Crown has submitted to the Court on repeated
    occasions, that there was a continuing pattern of inappropriate sexual abuse  Well,
    all sexual abuse is inappropriate, but sexual abuse by [the appellant] to [the
    complainant]. The fact that it continued, and that [the appellant] indicates
    that it was somehow consensual after the age of 18 adds nothing to any of the
    exculpatory aspects of the defence that he did not raise. My friend invites
    Your Honour to employ common sense, and the standard legally is beyond a
    reasonable doubt, but common sense does not lend to the finding that, all of a
    sudden, [the appellant], at the age of 18, started having sex with his
    stepdaughter, who he raised from the age  from the time that she was
    prepubescent. That defies common sense, Your Honour.

THE TRIAL JUDGES REASONS

[11]

The
    trial judge performed an extensive review and assessment of the evidence from
    the complainant and her mother. He was not persuaded to the legal standard by
    a number of the complainants allegations  including the
quid
    pro quo
incidents, the morning assaults, and rampant sexual assault
    in the home  due to uncertainties and inconsistencies in the complainants
    testimony, as well as the difficulty conceiving how the appellant evaded random
    detection given the large number of the allegations of sexual misconduct
    (approximately 1,339) made against him. The trial judge stated: My conclusions
    and uncertainty logically raise issues about the stand-alone reliability and
    credibility of this portion of [the complainants] evidence that was shown to
    be unreliable.

[12]

The
    trial judge continued by considering the effect of the Statement made by the
    appellant on his credibility assessment, stating:

That said the admission of sexual intercourse
    in [the complainants] 19
th
year in my view substantially
    rehabilitates such concerns for reliance on [the complainants] assertions
    about previous transactional sexual activity in the truck on the side of the
    road on the passenger side floor.

As unlikely as it is that [the appellant] and
    [the complainant] would even have the conversation, let alone sexual
    intercourse, if there was not an earlier routine is persuasive, circumstantial,
    corroborative evidence of an earlier routine. That this was a first such
    incident is implausible.
But for a routine of sexual
    engagement for pay this one-off incident is inconceivable
. It would mean:

1.       They converted a safe life-long
    parent/child relationship on its head in a moments whim.

2.       That [the complainant] would
    consent, let alone consider sexual intercourse with her stepfather with whom
    she had safely resided in and travelled hundreds of times to and from work, access
    and town on a whim.

3.       From her perspective she had the
    wits to negotiate about consideration for sexual favour in circumstances that
    would have been astonishing and traumatizing; and

4.       [The complainant] was about to
    celebrate her first anniversary with her boyfriend. This was the last thing she
    would tolerate as a first-time occurrence.

Notwithstanding my conclusions regarding the
    other allegations relative to the criminal standard of proof as noted, it does
    not mean the evidence is untrue. The burden of the Crown is closer to certainty
    than a balance of probabilities.

[The appellant] is presumed innocent. [F]or
    the reasons stated, I am not sure whether [the appellant] committed the
    criminal acts attributed to him other than those reported in the truck.

I accept as true [the complainants] central
    memories of [the appellant] sexually abusing her in the truck before she turned
    16.

I accept that the sexual abuse in the truck
    involved fellatio, cunnilingus and sexual intercourse and the one time [the appellant]
    threatened [the complainants] life were she to disclose.

GROUNDS OF APPEAL

[13]

The
    appellant submits the trial judge made two main reversible errors in his use of
    the Statement.

[14]

First,
    the trial judge improperly used the Statement to infer that since the appellant
    acknowledged having sexual relations with the complainant after she turned 19,
    he must have had sexual relations with her before that age. According to the
    appellant, that inference was the product of impermissible propensity reasoning
    and the application of stereotypical assumptions.

[15]

The
    second error was the failure of the trial judge to treat the Statement as
    exculpatory in part and conduct a proper analysis in accordance with the
    principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742.

FIRST GROUND OF APPEAL: IMPERMISSIBLE REASONING ERRORS

[16]

The appellant submits that the trial judges reasoning ran afoul
    of three basic rules:


i.

The general rule against propensity reasoning. One rationale for
    the general rule excluding evidence about an accuseds bad character or
    propensity to have done acts of a discreditable nature on occasions other than those
    for which the accused is charged is the risk that the trier of fact might convict
    the accused based on bad personhood or infer guilt from general disposition or
    propensity, the so-called moral prejudice risk:
R. v. Handy
, 2002
    SCC 56, [2002] 2 S.C.R. 908, at para. 31;


ii.

The rule that judges must avoid
speculative
    reasoning that invokes common-sense assumptions that are not grounded in the
    evidence or appropriately supported by judicial notice:
R. v. JC
,
2021 ONCA 131, 70 C.R. (7
th
) 38, at para. 58;
    and


iii.

The rule
that factual findings, including
    determinations of credibility, cannot be based on stereotypical inferences
    about human behaviour. It is an error of law to rely on stereotypes or
    erroneous common-sense assumptions about how a sexual offence complainant is
    expected to act, to either bolster or compromise their credibility and equally
    wrong to draw inferences from stereotypes about the way accused persons are
    expected to act:
JC
, at para. 63.

[17]

We
    are not persuaded that the trial judge ran afoul of any of those rules.

[18]

Appellate
    review requires a functional and contextual reading of a trial judges reasons,
    reading them in context and as a whole, in light of the live issues at trial,
    and without finely parsing the reasons in a search for error:
R. v. G.F.
,
    2021 SCC 20, 71 C.R. (7
th
) 1, at para. 69. When read in that way, we
    do not see the trial judges use of the Statement as tainted by reversible
    error.

[19]

We
    do not read the trial judges reasons as concluding that since the appellant
    admitted to a sexual encounter with the complainant when she was 19 years old,
    he therefore had a propensity to engage in discreditable conduct from which one
    could infer that he had committed the alleged acts against the complainant when
    she was underaged.

[20]

Nor
    do we read his reasons as engaging speculative reasoning that invokes
    common-sense assumptions not grounded in the evidence or using
stereotypical inferences about human behaviour to make credibility
    determinations. As
this court explained in
JC
,
    the rule against ungrounded common-sense assumptions does not prevent a trial
    judge from relying upon common sense or human experience to identify inferences
    that arise from the evidence. Instead, the rule prohibits judges from using
    common sense or human experience to introduce new considerations, not grounded
    in the evidence, into the decision-making process, including considerations
    about human behaviour:
JC
, at paras. 59-61. For
    its part, the rule against stereotypical inferences
only
    prohibits inferences that are based on stereotype or prejudicial
    generalizations:
JC
, at para. 65.

[21]

As we read his reasons, the trial judge used the Statement as part
    of his evidence-based credibility assessment.
Towards the start of his
    assessment of the evidence, the trial judge summarized the significance of the
    Statement on his credibility assessment: the appellants acknowledgement
of the sexual encounter after [the complainant] attained the age of
    18 years is strong circumstantial corroborative evidence supporting the
    inference of the truck routine [the complainant] alleges.

[22]

Later in his reasons, the trial judge explained why he reached the
    conclusion that the incident admitted by the appellant in his Statement was not
    a one-off incident but the result of a multi-year routine of sexual engagement
    that the complainant had described in her evidence. As set out in the portion of
    his reasons reproduced at para. 12 above, the trial judge provided several
    reasons why he thought it was inconceivable, or improbable, that the admitted
    incident was a one-off incident. Those reasons were grounded in the evidence
    about the nature of the relationship between the appellant and the complainant,
    as described by the complainant in her evidence at trial. His use of the
    Statement to support the credibility of the complainants testimony about the
    sexual assaults in the truck was grounded in the evidence, not a product of speculative
    or other prohibited reasoning.

SECOND GROUND OF APPEAL: FAILURE TO
    CONDUCT A PROPER
W.(D.)
ANALYSIS

[23]

The appellant submits that the trial judge failed to recognize that the
    Statement had an exculpatory aspect, in that the appellant stated that the
    complainant was 19 years old, not 10, when he had a sexual encounter with her.
    As a result, the trial judge failed to perform a proper
W.(D.)
analysis.

[24]

We
    see no such error. The trial judge expressly recognized that the Statement was
    partially exculpatory. However, the trial judge attached little weight to
    the exculpatory aspect of the Statement as he regarded it more as an alternate
    narrative  namely, that the complainant was of age when consensual
    intercourse occurred  than a denial of the charges against him. It was open to
    the trial judge to assess the Statement in that way: Justice David Watt,
Watts Manual of Criminal Evidence 2021
(Toronto:
    Thomson Reuters, 2021), at §37.06.

[25]

As well, the trial judge found that because the Statement by the
    appellant when first confronted by Det. Cholette was not spontaneous, the
    circumstances surrounding the making of the Statement stripped it of any
    significant value to the appellant. We see no error in this reasoning. It was
    open to the trial judge to give the exculpatory portion minimal weight due to
    its lack of spontaneity. An exculpatory statement provided to the Detective
    after he had already been charged by the police in Quebec was not likely to be
    of much significant value.

[26]

Further,
    the trial judge clearly stated that the appellant was presumed innocent.
    Indeed, the trial judge was not prepared to accept that the allegations against
    the appellant involving conduct in the residences and the quid pro quo
    instances of sexual favours in return for rides into town or lunch money had
    been proved beyond a reasonable doubt.

[27]

While
    the elements of the trial judges
W.(D.)
analysis are found in
    different parts of his reasons, when read as a whole the reasons disclose a
    proper
W.(D.)
analysis. The reasons make it clear that the trial judge
    did not accept the appellants admission in the Statement of sexual intercourse
    as credible evidence denying the allegations against him or raising a
    reasonable doubt. As he stated in his reasons: The circumstances are such that
    very little weight can be attached to the statement [as] evidence of an
    alternate narrative. Later in his reasons the trial judge completed his
W.(D.)
analysis, explaining why he was convinced beyond
    a reasonable doubt of the appellants guilt with respect to the incidents in
    the truck  namely, the appellants Statement confirmed the complainants
    evidence of a lengthy history of sexual offences against her in the truck,
    often accompanied by the payment of money.

DISPOSITION

[28]

For the reasons set forth above, the appeal is dismissed.

E.E. Gillese J.A.

David Brown J.A.

S. Coroza J.A.





[1]
The transcript and officers notes record the first part of the
    Statement as: She was 19 not 10. At trial, Detective Cholette explained the
    context in which the appellant made the Statement:

I thanked
    him for calling me back, and I advised him that there was grounds for his
    arrest in regards to sexual assault allegations brought forward by [the
    complainant]. I advised him that if he would turn himself in that he would be
    released on a recognizance with a deposit, as he lives out of province, which
    is a practice for us, instead of just a promise to appear, if he attended. And
    if he wished not to attend, that I would seek a warrant for his arrest.
At
    that point, [the appellant] started speaking very quickly and started saying
    all sorts of things. I made a couple notes in my book. I didnt get the full  all
     everything that he was saying because it was numerous just things, I guess. Some
    of the two that I  that I had  that I remember directly because it related in
    regards to my investigation was one of them stated that she was 19 years old,
    not 10.
He continued to speak, and then one that I actually got in quotes,
    which is exactly what he had said, was, I was sleeping with her aunt, wifes
    sister., end quote. At that point, I stopped [the appellant], immediately. I
    sort of talked over him, and I advised him and cautioned him that what he says
    could be used in court. At that point, he acknowledged, and then stated another
    statement in regards to she was trying to get $4,000. So, everything that he
    was saying within those  just the statements that I had mentioned within my
    notes kind of corroborated what the investigation or some of the videos that I
    watched and what [the complainant] was saying, so he was providing an
    inculpatory statement against himself, which I tried to actually help him  cut
    him off, and I even advised him not to speak anymore, and if he had a lawyer,
    currently, as he was previously charged in Quebec, that he should bring the
    phone number with him when he comes into the detachment to turn himself in.
    [Emphasis added.]


