



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    the complainant or a witness shall not be published in any document or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. S.M., 2012 ONCA
    762

DATE: 20121109

DOCKET: C53987

OConnor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.M.

Appellant

Delmar Doucette, for the appellant

Scott Latimer, for the respondent

Heard: November 5, 2012

On appeal from the conviction entered on April 1, 2011 by
    Justice G.M. Mulligan of the Superior Court of Justice, sitting without a jury.

By the Court:

[1]

The appellant and his wife were foster parents to the complainant and
    her three siblings. The complainant was approximately eight years old when she
    became their foster child. When the complainant was 15 years old, she left the
    foster home after an argument about cell phone use. She did not return to the
    foster home. She did not report any sexual improprieties to foster home staff,
    Childrens Aid Society staff or the police, prior to or on her departure from
    the home.

[2]

Eighteen months later, when the complainant was 17 years old, she told
    police that the appellant had sexual intercourse with her on many occasions
    over a three-year period when she was 12 to 15 years old.

[3]

The appellant was charged with one count of sexual assault and sexual
    exploitation and two counts of sexual interference. On April 1, 2011, the trial
    judge found the appellant guilty on all four counts.

[4]

On September 16, 2011, the trial judge imposed a custodial sentence of four
    and one-half years imprisonment on the sexual assault count and two years imprisonment
    concurrent on the sexual exploitation count. He entered conditional stays on
    the two sexual interference counts pursuant to
R. v. Kineapple
, [1975]
    1 S.C.R. 729.

[5]

The appellant appeals against conviction. He advances five grounds of
    appeal.

[6]

First, the appellant contends that the trial judge failed to properly
    consider the evidence relating to the appellants erectile dysfunction.

[7]

We do not accept this submission. The trial judge expressly considered
    this evidence in his decision. He summarized all the evidence in this regard,
    including the appellants ex-wifes testimony that the appellant had a
    diminished sex life but was still able to perform. He also noted the
    appellants family doctors testimony that the appellant complained about a
    partial erection or an unpredictable erection. All this was consistent with
    the complainants description of the appellants sexual assaults on her  brief
    penetration with no ejaculation.

[8]

Second, the appellant asserts that the trial judge failed to properly
    consider the complainants inconsistent statements in three domains: (1) a
    false allegation made in her initial police statement; (2) her previous denials
    to her sister and police that she had been sexually assaulted by the appellant;
    and (3) her inconsistent statements about the number and frequency of the
    sexual assaults.

[9]

We disagree. The complainant did not assert that a sexual assault took
    place on December 17, 2007, her last day in the foster home; what she described
    was her belief that the appellant intended to assault her on that day. The
    trial judge dealt with the second point at some length, noting specifically
    that the complainant considered herself to be lucky to be in the ... home...
    with three siblings and all the other advantages that home offered, and was
    understandably reluctant to complain of abuse.

[10]

On
    the third alleged inconsistency, it is true that the complainants statements
    about the frequency of the sexual assaults changed over time, beginning at 20
    to 50 times over a three-year period and rising to two to three times a week or
    even more than three times a week. It is also true that in his reasons the
    trial judge appeared to record both of these frequency frameworks as factual
    findings.

[11]

Early
    in his reasons, the trial judge said: It was [the complainants] evidence that
    there was sexual touching or sexual intercourse between 20 and 50 times over
    these years. This was an error; this was the frequency the complainant
    reported in her initial statement to the police. However, near the end of his
    reasons when he was summarizing his conclusions, the trial judge said that she
    allowed that the number of sexual contacts increased to eventually being three
    times or more per week.

[12]

The
    appellants more substantial complaint on this issue is that the trial judge
    did not grapple with the credibility-related implications of the complainants
    shifting statements regarding the number of alleged assaults over the years.

[13]

We
    disagree. After reviewing, accurately, the complainants various estimates relating
    to the frequency of sexual assaults, the trial judge concluded:

I accept her evidence as credible and truthful, on the basis
    that she was recalling events that happened when she was between 12 and 15
    years old, events that she tried to block out of her mind. Her age and lack of
    sophistication, especially when she was younger, provide context for her
    evidence. Although she expressed uncertainties about the number of times sexual
    intercourse took place, I accept that a young person would not keep an accurate
    count of intercourse with a foster father, and would be reluctant to provide
    any more intimate details than would be absolutely necessary when speaking to a
    police officer.

In our view, it was open to the trial judge to reach
    this conclusion.

[14]

Third,
    the appellant argues that the trial judge failed to consider the complainants
    new false allegation, made during her cross-examination, that sexual abuse also
    took place some mornings before she went to school.

[15]

In
    our view, when this issue arose the appellants testimony was halting and
    uncertain and, at its highest, was that there was a chance that sexual activity
    took place in the morning because he had me alone at home. The trial judge
    dealt comprehensively with the issue of the complainants credibility; he did
    not have to discuss every aspect of her testimony.

[16]

Fourth,
    the appellant contends that the trial judge did not properly consider the
    improbability of the complainants allegation, given the alleged location and
    frequency of the sexual assaults and the large number of people residing in the
    family home.

[17]

We
    disagree. The trial judge addressed this issue under the heading
The
    Opportunity To Be Alone
. He reviewed the evidence about the opportunity
    the appellant had to abuse the complainant when there was nobody else in the
    house as well as when others were at home. He pointed out that the abuse
    allegedly occurred from 2003 to 2007. (In fact, it was from 2004 to 2007).

[18]

The
    trial judge concluded as follows: Im satisfied that over this prolonged period
    of time, there were many occasions when [the appellant and the complainant]
    were at home without anyone else present or nearby. Further on he continued I
    am satisfied that there were sufficient number of evenings when [the
    complainant and the appellant] were alone in the basement recreation room.

[19]

The
    appellant points out that in reaching these conclusions, the trial judge
    incorrectly said that the complainants evidence was that there had been sexual
    touching or intercourse between 20 and 50 times over the years. In fact, the
    complainant ultimately testified that there had been sexual contact much more
    frequently than that, probably on about 200 occasions.

[20]

We
    are not persuaded that this error infected the trial judges overall conclusion
    that the complainant was a credible witness. It is clear from his reasons that
    he understood that the complainant had given different estimates as to the
    number of times she had been abused and that, nonetheless, he believed her
    evidence. Implicit in his belief of her evidence is the conclusion that the
    appellant had the opportunities to abuse her on the number of occasions she
    described. Thus, while the trial judge did misstate the complainants evidence
    on one occasion in his reasons, we are not persuaded that this mistake made a
    difference in the result.

[21]

Fifth,
    the appellant submits that the trial judge erred by rejecting the appellants
    credibility on an improper basis. In particular, he challenges this passage
    from the trial judges reasons:

A close analysis of [the appellants] evidence raised serious
    issues about his credibility as to the denial of sexual assault on [the
    complainant]. The inconsistencies in his evidence lead me to conclude that I do
    not believe his evidence with respect to the key issue of whether or not sexual
    assaults took place.

[22]

The
    appellant submits that the references to his evidence in this passage mean
    the appellants testimony and there were no inconsistencies in that testimony,
    nor did the trial judge point to any in his reasons.

[23]

Although
    on a plain reading of only the words of this passage the appellants
    interpretation is certainly possible, against the backdrop of the trial judges
    reasons read as a whole we are inclined to reject it.

[24]

The
    reality is that the appellant testified at his trial and called several
    witnesses, including his ex-wife (his wife at the relevant time), his two
    daughters, his son, and his current girlfriend. Over the course of about 15
    pages in his reasons before stating the conclusion set out in the passage
    above, the trial judge reviewed the appellants testimony and regularly
    compared it with the testimony of these defence witnesses. In this context, the
    trial judge identified several inconsistencies: for example, the appellants
    testimony that he did not shave his pubic hair versus the complainants
    testimony to the contrary as confirmed by the appellants ex-wife; the
    appellants testimony that he did not use the Viagra and Cialis he had been
    prescribed because it gave him headaches versus his ex-wifes testimony that he
    did not complain about headaches caused by this medication; and the appellants
    testimony that there was limited opportunity for the complainant to be alone
    with him after school versus his ex-wifes testimony that she was not always
    there after school.

[25]

Importantly,
    in addition to these inconsistencies, the trial judge noted that the
    complainant, who left the home at age 15, testified that the appellant was
    circumcised, had a scar on his penis and a mole on his buttocks, shaved his
    pubic hair, and had had a vasectomy. All of this was accurate; it is a
    remarkable constellation of intimate physical facts for a 15-year-old foster
    child to know about a foster father.

[26]

Taking
    these factors together, we cannot say that the trial judge erred by rejecting
    the appellants credibility.

[27]

The
    appeal is dismissed.

Released: November 9, 2012 (D.OC.)

D. OConnor A.C.J.O.

J.C. MacPherson J.A.

E.A. Cronk J.A.


