



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Freamo, 2021 ONCA 223

DATE: 20210413

DOCKET: C67000

Watt, Benotto and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Clayton Freamo

Appellant

Daniel Howard, for the appellant

Natalya Odorico, for the respondent

Heard: March 23, 2021 by video
    conference

On appeal from the conviction entered on
    January 2, 2019 by Justice Martin S. James of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellants wife operated a daycare in their
    home. The appellant was charged with seven counts of sexual offences in
    relation to two complainants who attended the daycare. The events giving rise
    to the charges took place between 2004 and 2010 in connection with the
    complainant J.R. and between 2005 and 2008 for the complainant S.L. Both
    complainants attended the daycare. The trial judge convicted the appellant on
    one count of sexual interference and one count of sexual assault in relation to
    J.R. and entered acquittals on the other two charges in relation to J.R. and
    all three in connection with S.L. The sexual assault charge was conditionally
    stayed pursuant to
Kienapple v. The Queen
, [1975] 1 S.C.R. 729. The
    appellant appeals his sexual interference conviction, alleging a faulty
    credibility analysis by the trial judge.

[2]

In a videotaped interview, admitted at trial
    under s. 715.1 of the
Criminal Code
without objection, J.R. stated
    that on one occasion the appellant forced her to fellate him. He was convicted
    of the incident which occurred in the backroom which was also a laundry room.
    In total, she stated that the assaults happened anywhere from 2 to 20 times. She
    said that after assaulting her he would usually sit naked on the couch and watch
    television for half an hour.

[3]

The appellant denied all the allegations.

[4]

The trial judge found it highly improbable
    that the appellant would sit naked on the couch after assaulting J.R. but
    believed her evidence about the backroom incident.

[5]

The appellant submits that the trial judge
    incorrectly approached the credibility analysis as a contest between his
    evidence and that of J.R. He points to two comments made by the trial judge:
    (i) that the appellants evidence was stacked against J.R.s; and (ii) that
    the evidence of the appellant was weighed against that of J.R.

[6]

We do not agree.

[7]

First, the impugned comments should not be
    extracted from the words surrounding them. The entire paragraphs are as follows.

[8]

With respect to stacked against:

When Mr. Freamos
    denial is stacked against J.R.s evidence that there was an occasion when Mr.
    Freamo put his penis in her mouth, I am satisfied that J.R.s evidence is
    sufficient to displace the presumption of innocence, and
I am not left in a state of reasonable doubt
    that Mr. Freamo committed the offence of sexual interference pursuant to s. 151
    of the Criminal Code. I found J.R.s evidence of the other incidents to be less
    certain.
For example, during the police
    interview when J.R. referred to an incident when she says Mr. Freamo asked her
    to touch herself, the recording is unclear. The interviewer referred to her
    vagina but there was no unequivocal confirmation by J.R. [Emphasis added.]

[9]

With respect to weighed against:

I am not prepared
    to find that the rejection of this piece of evidence makes the rest of J.R.s
    evidence unreliable or untrustworthy. J.R. was very specific in recalling an
    incident that involved Mr. Freamo putting his penis in her mouth. She seems
    certain that it was Mr. Freamo who did this.
I accept
    this evidence.
I have weighed the evidence of J.R. against the evidence
    of Mr. Freamo. I
acknowledge that Mr. Freamos
    defence is a general denial and it must necessarily be lacking in detail. I am
    also cognizant that as I mentioned before, proof of guilt beyond a reasonable
    doubt requires more than a credibility contest.
[Emphasis added.]

[10]

The trial judges statements following the
    impugned language demonstrates a correct understanding and application of the
    burden of proof.

[11]

Second, these words must also be considered in
    the context of the reasons as a whole. The trial judge repeatedly correctly
    instructed himself on the proper approach to a credibility analysis. He considered
    the counts individually. He explained why he had doubts on some of the counts.
    For example, he explained that he had a reasonable doubt on J.R.s evidence
    with respect to the fact that the appellant told her to touch herself, because
    the recording of her police interview was ambiguous on those other counts, and
    there was no follow-up by Crown counsel during J.R.s in-court testimony. He
    further explained why his doubt on some of her statements did not undermine his
    belief on the backroom incident. He acquitted on all of the counts with respect
    to S.L. The trial judge applied a correct approach to the credibility analysis.

[12]

The appellant also submits that the trial
    judges doubt about the allegation that the appellant sat naked on the couch is
    inconsistent with his belief about the backroom incident. The appellant says
    that all the trial judge said was that the couch incidents were highly
    improbable and more was required to explain the inconsistency. Again, we do
    not agree. The trial judge discussed this with defence counsel during
    submissions.

[13]

Defence counsel said:

[T]hat just sounds
    [like] completely illogical behaviour that is so risky that it would defy
    credulity that he would be sitting for long periods of his time naked on [the]
    couch and when we know that his teenage son and daughter reside there, his wife
    resides there  that undermines the credibility and reliability of [J.R.]

[14]

The trial judge then put this to Crown counsel:

You may agree that
    it is improbable that the assailant would sit naked on the couch in the living
    room where the T.V. is for half an hour or so after the incident. It strikes me
    as improbable.

[15]

The appellant submits that the fact that J.R.
    was not believed about the sitting naked on the couch should have formed part
    of his credibility analysis with respect to the backroom.

[16]

The trial judge clearly had a reasonable doubt
    about the evidence with respect to sitting naked on the couch. However, he
    believed the evidence regarding the backroom incident. This does not reflect an
    inconsistency. On the contrary, it reflects an intention to assess the evidence
    carefully. This  together with the acquittals  provides additional confidence
    in the trial judges ultimate conclusion as to guilt on the two counts.

[17]

The appeal is dismissed.

David
    Watt J.A.

M.L.
    Benotto J.A.


I.V.B. Nordheimer J.A.



