



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. D.T., 2019 ONCA 574

DATE: 20190705

DOCKET: C65038

Doherty, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.T.

Appellant

Jeff Marshman, for the appellant

Sarah Shaikh, for the respondent

Heard: July 4, 2019

On appeal from the convictions entered on November 17,
    2017 by Justice Jocelyn Speyer of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant D.T. appeals from convictions for two counts of sexual
    assault, two counts of touching a person under 14 for a sexual purpose, and two
    counts of invitation of a person under 14 to sexual touching. All these
    offences were alleged to have taken place in 1995 and 1996 when the appellant,
    then a 21-year old student at Seneca College, lived with the complainants
    family in homes in Scarborough, Pickering and Uxbridge. The complainant was
    nine years old at the time.

[2]

The trial judge convicted the appellant on six counts in an eight count
    indictment. She acquitted on two counts of sexual assault that allegedly took
    place while the complainant was sleeping. The appellant does not advance
    inconsistent verdicts as a ground of appeal.

[3]

The complainant, his two sisters, who were 11 and 8 years old at the
    time of the alleged offences, and his parents all testified at the trial. The
    appellant also testified and flatly denied the allegations. The trial judge
    disbelieved the appellant. She instead preferred the evidence of the
    complainant, whom she found credible and reliable, as well as the evidence of
    the appellants younger sister who recalled seeing the appellant and complainant
    playing a kissing game on one occasion. Neither the complainants parents (his
    father was separated from his mother and was not living in the three homes in
    1995-1996) nor his older sister gave any direct evidence about the alleged
    sexual offences.

[4]

The appellant raises three grounds of appeal.

[5]

First, the appellant contends that the trial judge erred by dismissing
    the appellants proposed character evidence as inadmissible.

[6]

This issue arises from questions defence counsel asked about the
    appellants many years as a youth hockey coach after he stopped living with the
    complainants family:

Q. No one told you there was an active investigation.

A. No.

Q. Youre just assuming there was?

A. Well, I was told when I was being

Q. I dont wanna be told unless, unless it was somebody in this
    room that told you.

A. It was.

Q. Okay, what were you told?

A. I was told when I was being arrested that they were going to
    look into every possible avenue to

Q. Okay.

A.  see if, um, to see if there were any other allegations.

Q. Okay. Did you, have you learned of any other allegations?

A. No.

Q. Okay.

[Crown counsel]: And Im not sure much turns on it, cause I
    dont think its relevant, but, I, I do object to that hearsay. Theres not an
    exception to the hearsay rule, for people in the room, so, I object.

[Defence counsel]: Well, if it was, unless it was the
    investigating officer, we may call her, on that point, and then it wouldnt be
    hearsay.

THE COURT: But what would it be relevant to?

[Defence counsel]: That theres been no other allegations
    throughout his hockey career, and coaching at various stages.

THE COURT:
And if there were, I couldnt use that
    propensity evidence as proof of guilt.

[Defence counsel]: Thats fine, thank you. Ill move forward.

[Emphasis added.]

[7]

The appellant says that the trial judge erred in making this ruling.

[8]

We are not persuaded by this submission. In our view, what the trial
    judge said in this exchange was a comment (and one that favoured the
    appellant), not a ruling. Defence counsel reacted to the comment, and abandoned
    this line of questions. He did not ask for, or even suggest, that he wanted a
    formal ruling on whether he could introduce character evidence on behalf of the
    appellant. In any event, evidence that the police had investigated the
    appellants role as a hockey coach of young boys and not laid criminal charges
    would not constitute evidence of good character and would be irrelevant.

[9]

Second, the appellant submits that the trial judge failed to properly
    consider the evidence of collusion, especially between the complainant and his
    younger sister. The appellant does not say that the sister concocted her
    testimony to support her brothers testimony. Rather, the appellant claims that
    there was a real possibility of innocent collusion caused by a combination of
    the passage of time, the two siblings relationship, and a family discussion,
    years prior, about possible problems in the relationship between the appellant
    and the complainant. The appellant submits that the trial judge failed to
    consider the possibility of this type of innocent collusion: see
R. v.
    M.B.
, 2011 ONCA 76, at para. 18.

[10]

We
    do not accept this submission. In our view, the trial judges reasons, read as
    a whole, make clear that she found that there was no direct collusion between
    the complainant and his sister, nor was there any reason to conclude that there
    was any indirect or innocent influencing of the sisters evidence.

[11]

On
    the latter point, the trial judge said:

MPs [the sisters] evidence, if believed, provides significant
    corroboration of ZPs [the complainants] evidence. There is no doubt that MP
    believes her brother is telling the truth about what happened and that she is
    very close to him. Her belief in her brother is obviously not relevant to my consideration,
    other than in aid of the defence position that she was not an objective,
    disinterested witness.

There is no doubt that when he went to the police, ZP
    telephoned MP and asked her if she remembered the Breathing Game.
    Notwithstanding her interest, and the opportunity to discuss the events with
    her brother, I believe MP.



Her memory was clear and detailed, and did not mimic ZPs
    account.

[12]

In
    our view, this passage is a clear and direct response to the innocent
    collusion ground of appeal. The trial judge dealt with the issue and reached a
    conclusion that was open to her.

[13]

Third,
    the appellant asserts that the trial judge erred by applying a stricter
    standard of scrutiny to defence evidence than to the Crown evidence.

[14]

We
    disagree. In
R. v. Gravesande
, 2015 ONCA 774, this court said, at
    para. 19:

For an appellant to successfully advance this ground of appeal,
    she must identify something clear in the trial judges reasons or the record
    indicating that a different standard of scrutiny was applied and something
    sufficiently significant to displace the deference due to a trail judges
    credibility assessments.

[15]

There
    is nothing in the trial judges reasons, in length or in content, dealing with
    the credibility of the Crown witnesses and the appellant to suggest uneven
    scrutiny.

[16]

The
    appeal is dismissed.

Doherty J.A.

J.C. MacPherson J.A.

M.L. Benotto J.A.


