



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    complainant or a witness shall not be published in any document or broadcast or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.






CITATION:
R. v. D.T.G., 2011
          ONCA 40



DATE: 20110118



DOCKET: C48140  C49269



COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., MacFarland and Watt JJ.A.



BETWEEN                                                                                                                     C48140



Her Majesty the Queen



Appellant



and



D. T. G.



Respondent



AND  BETWEEN                                                                                                         C49269



Her
          Majesty the Queen



Respondent



and



D. T. G.



Appellant



Philip Campbell and Michael
Dineen
,
          for the appellant (on conviction)/respondent (on sentence)



John McInnes and Chris Dwornikiewicz, for the Crown respondent
          (on conviction)/ appellant (on sentence)



Heard:  November 12,
          2010



On appeal from the convictions entered by Justice Frances P. Kiteley
          of the Superior Court of Justice dated March 13, 2007 and the sentence
          imposed by Justice Kiteley on November 28, 2007.



MacFarland J.A.:

OVERVIEW



[1]

This is an appeal by the accused from the judgment of
    Kiteley J. who entered convictions on five counts of indecent assault; one
    count of threatening death; two counts of assault causing bodily harm; one
    count of sexual intercourse with a person under 14 and one count of assault
    with a weapon.  The Crown appeals the
    sentence imposed by the trial judge.

[2]

The charges against the appellant relate to historical
    physical and sexual abuse alleged to have been perpetrated on two of his four
    step-daughters, V. and B. The complainants testified that the appellant
    regularly beat them between 1969 and 1977.  They also testified that he forced them to engage in sexual activities
    including fondling, oral sex and, in the case of the younger complainant, full
    sexual intercourse.  The older
    step-daughter, V., also testified that she and her sister had been forced to perform
    sexual acts on each other; the younger step-daughter B. testified to no such
    events and said that she had not been aware that her sibling had also been
    molested.  The appellant testified and
    denied all allegations.  The appellant
    submits that the trial judge erred in her approach to the assessment of
    credibility and raises three grounds of appeal:

1.         The trial judge erred in finding the
    appellants evidence unreliable for
    speculative and unfounded reasons;

2.         The trial judge erred in finding the
    appellants evidence incredible because
    he had a motive to lie; and

3.         The trial judge erred in failing to
    appreciate a major inconsistency between
    the complainants.

[3]

For the reasons that follow, I am of the view that the
    conviction appeal must be allowed and a new trial ordered.  Accordingly, it is unnecessary to deal with
    the sentence appeal.

THE FACTS

[4]

The appellant was born in Newfoundland on December 11,
    1945.  In 1968, he moved to Ontario where
    he met B.L., the mother of the complainants.  B.L. had also recently moved to Ontario from Newfoundland with her
    husband and four daughters.  She and her
    husband separated in 1969 and she subsequently began a relationship with the
    appellant.  V. and B. are B.L.s second
    and third daughters; they were seven and six years of age, respectively, when B.L.
    moved in with the appellant.  The
    appellant and B.L. soon had a son together.  The family lived in Toronto for three years,
then
moved to Kitchener where they lived for a couple of years.  In 1974, they returned to Toronto.  In 1977, the appellant and B.L. separated when
    the appellant moved to Alberta, where he eventually got married and had a
    daughter.

V.s Evidence

[5]

V.
    testified that the appellant began to sexually abuse her when she was about
    seven years of age.  She described the
    first incident of abuse in the familys kitchen at their home in Toronto and of
    specific incidents that occurred when they lived in Kitchener.  She recalled an incident when she was sick in
    bed with the mumps and the appellant brought her jello and then fondled
    her.  She also spoke of occasions when
    the family would go swimming in Kitchener and the appellant would make her rub
    his penis and he would fondle her inside her bathing suit.  She spoke of him coming into her bedroom at
    night, fondling her and placing his penis in her mouth.  She also spoke of an occasion when the family
    was driving back from Kitchener in a station wagon and the appellant climbed
    into the back where V. was lying under blankets and fondled her there.  She testified to the appellants verbal and
    physical abuse throughout his relationship with B.L.  According to V., the appellant beat B.L. and
    spanked V. regularly, often using shoes or belts.

[6]

V.
    also testified about occasions when she and B. were forced to perform oral sex
    on the appellant together.  They were
    also required to perform oral sex on each other and to use a vibrator on each
    other.  She recalled a specific incident
    when the appellant was speaking to her mother on the phone, telling her
    everything was fine, while V. and B. performed oral sex on him.  According to her, she did not tell her mother
    about the sexual abuse because the appellant had told her that if she did, her
    mother would no longer love her.  Although V. testified that she had disclosed the abuse to her husband
    years earlier, neither he nor anyone else testified that either complainant had
    disclosed these matters before 2000.

B.s Evidence

[7]

B.
    spoke of similar abuse.  She said the
    appellant spanked her almost every night and often used a belt.  He would belittle her and call her
    stupid.  He regularly beat her
    mother.  She said the appellant fondled
    her and forced her to perform oral sex on him, telling her that this was what fathers
    did to their little girls to prepare them for their future husbands.  B. testified that the appellant started
    having intercourse with her when she was eleven or twelve years of age.  According to her, she would go over weekly to
    the appellants new apartment in Toronto and have intercourse or oral sex with
    him until he moved to Alberta when she was thirteen or fourteen years old.  In her evidence, B. clearly stated that she
    was not aware of any sexual abuse perpetrated on her siblings during this
    period.

[8]

B.
    had been addicted to cocaine and other drugs for years.  It was during a relapse following her release
    from a rehabilitation program that she first told her mother of the abuse in an
    effort to explain why she had personal problems. She went to the police in
    2004. V. only decided to give police a statement after B. had done so; she
    described her testimony as standing by her sister.

B.L.s Evidence

[9]

B.L.,
    the complainants mother, testified for the Crown.  She said the appellant was physically abusive
    to her. Her evidence was that he disciplined the children by yelling at them
    and grounding them.  If she intervened,
    he would beat her.  She had no awareness
    of any of the physical or sexual abuse that her daughters claimed to have
    suffered.  She gave no evidence of ever
    having noticed injuries or any other sign of abuse.

The Appellants Evidence

[10]

The
    appellant denied all sexual interaction with either V. or B.  He denied being regularly violent with his
    wife or her children but he admitted that he may have shouted at them or struck
    at them with his hand for occasional discipline, but never with belts or other
    objects.  He acknowledged that he and
    B.L. argued, particularly near the end of their relationship and when they had
    been drinking.  In relation to his
    drinking, the appellant was asked by the Crown:

Q.        And did you have a problem with alcohol,
    and do you have a problem with alcohol?

A.
           No, I dont, maam.

Q.
           Im going to suggest to you that [B.L.]
    really isnt much of a drinker.

A.        She partied enough with me and our
    friends.

Q.        She was a social drinker

A.        I was a social drinker also.  Okay, I got drunk every now and then on a
    weekend or whenever the case. Its just we drank too much. You dont realize it
    at the time.  Yes, and I partied.  She partied with me.  We went camping.  We
drank,
the whole
    lot of us, our friends and everyone.
Theres
nights we got drunk.
Theres
other nights we didnt.

[11]

B.L.
    described the appellant as a controlling man and as being physically abusive
    toward her but she was not asked directly about the appellants alcohol
    consumption.  The appellant testified
    that he was a different person now (at trial) than he had been thirty years
    earlier  he had quit drinking, changed his lifestyle and dumped his anger.

[12]

Following
    his move to Alberta, the appellant continued to have contact with the
    complainants. Many cards and letters sent to him by both complainants were put
    into evidence.  V. said she continued to
    send cards because she still saw the appellant as a father figure.  B. claimed she remained in contact because the
    appellant continued to threaten to kill her mother. Both complainants visited
    the appellant in Alberta after his move there.  Contact appears to have stopped in 1994, the year the appellants wife
    died of cancer.

ANALYSIS

[13]

The
    Crown conceded in its closing submissions that this case was a close call. This
    was a case of two uncorroborated accounts from two complainants and a broad
    denial by the appellant of any abuse.  In
    dealing with the evidence of the complainants, the trial judge found aspects of
    the evidence of both V. and B. problematic.  The case was not an overwhelming one for the Crown.

[14]

The
    appellants evidence is dealt with at paras. 78 through 83 of the trial judges
    reasons for judgment. She briefly reviewed some aspects of the appellants
    evidence and concluded:

[82]    Given
    his concession that he might have hollered at the children and might have
    smacked them for discipline, I find that the anger that he admits was part of
    his personality affected his perception of the events at the time.  Perhaps because of his alleged transformation
    he minimizes the profound effect he had on the lives of [B.L.] and [V.] and [B.].

[83]     Even on his evidence he drank alcohol
    frequently and excessively. That too may have had an effect on his memory. He
    has a motive to minimize what he did do and deny any behaviour that might
    attract criminal liability.  It may be
    that his memory is sufficiently impaired by alcohol, by the passage of time,
    and by his asserted transformation that he does not remember the events that
    form the basis of the allegations.  I do
    not find his evidence credible and reliable.  I do not accept his evidence. His evidence does not raise a reasonable
    doubt.

[15]

There
    are a number of problems with this reasoning, the first and most obvious being
    that the reasons are conclusory. There is no analysis of the evidence.  Further, the basis upon which the appellants
    evidence is rejected is speculative at best. The trial judge found that the
    appellants anger had affected his perception of past events without any
    evidence whatsoever to support that conclusion. The appellant was not
    cross-examined about whether or not his anger may have affected his perception
    of past events nor was any expert or other evidence called on the point.  In addition, the trial judge speculated that
    perhaps because of the appellants alleged transformation, he minimized the
    effect he had on the lives of the complainants and their mother.  Once again, there is no basis in the evidence
    to support such a conclusion.  Similarly,
    the trial judge speculated that the appellants consumption of alcohol may
    have affected his memory  again without any support in the evidence to support
    such a conclusion.

[16]

Equally
    problematic is the trial judges statement: He has a motive to minimize what
    he did do and deny any behaviour that might attract criminal liability.  This court considered a similar comment in
R. v. L.B.
(1993), 82 C.C.C. (3d) 189,
    at p. 190:

It is only necessary to consider one
    of the two grounds of appeal. The appellant submits that the trial judge erred
    in attributing to him a motive to lie, as a reason for disbelieving his
    evidence.



When
    he came to consider the evidence of the appellant, the trial judge said: The
    accused, of course, has a motive for not telling the truth, he does not wish to
    be convicted.

The
    appellant submits that this was an error as it displaced entirely the presumption
    of innocence and presupposed the guilt of the appellant.  I agree.

[17]

In
    my view, the trial judges comment in this case about the appellants motive
    falls into the category of impermissible reasoning outlined in
L.B.
 that in effect, the appellant
    will lie to avoid criminal liability.  Such a comment displaces the presumption of innocence and in the
    language of
L.B.
, at p. 191, goes
    beyond the permissible consideration of the accuseds interest in being
    acquitted, as one factor to be taken into account when weighing his
    testimony.  It falls into the
    impermissible assumption that the accused will lie to secure his acquittal.

[18]

The
    final ground of appeal relates to the significant contradiction in the evidence
    of the complainants.  V. testified that
    the appellant forced her and B. to perform oral sex on him and on each other,
    with and without a vibrator.  B.
    testified that she had been unaware until her adulthood that V. too had suffered
    sexual abuse at the hands of the appellant.  The trial judge dealt with this serious contradiction at para. 100 of
    her reasons:

It
    is the case that [B.] did not give evidence about being forced to participate
    in sexual acts with her sister at the family residence or at [the appellants]
    apartment.  But she was never asked that
    question specifically in cross-examination and [the Crown] could not
    cross-examine on that point. I have accepted [V.s] evidence on that point. I
    draw no negative inferences that [B.] did not speak on the same issue.

[19]

In
    my view, the trial judge had to do more in dealing with this significant
    inconsistency in the complainants evidence.  It is not enough to simply say that the defence did not ask a specific
    question in relation to this evidence and that the Crown could not
    cross-examine on the issue. This was a serious conflict in the evidence.  It was the Crowns problem.  A trial judge is not required to expressly
    deal with every inconsistency in the evidence.  However, as Binnie J. noted in
R.
    v. Sheppard
, [2002] 1 S.C.R. 869, at para. 55:

Reasons
    acquire particular importance when a trial judge is called upon to address
    troublesome principles of unsettled law, or to resolve confused and
    contradictory evidence on a key issue

[20]

In
    my view, the trial judges reasons here do nothing to resolve this
    contradictory evidence on a key issue.  This was not an insignificant conflict in the evidence.  The trial judge had a duty to address this
    inconsistency and failed to do so.

[21]

For
    the foregoing reasons, I am of the view that the appeal must be allowed, the
    convictions set aside and a new trial ordered.

[22]

In
    view of this result on the conviction appeal, it is neither necessary nor
    appropriate to deal with the Crowns sentence appeal.

RELEASED:  January 18,
    2011 DOC

J. MacFarland
    J.A.

I
    agree Dennis OConnor A.C.J.O.

I
    agree David Watt J.A.


