



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. R.R., 2020 ONCA 327

DATE: 20200528

DOCKET: C64708

Doherty, Juriansz and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.R.

Appellant

Richard Litkowski and Jessica Zita, for
    the appellant

Jennifer Trehearne, the respondent

Heard: May 19, 2020 via videoconference

On appeal from the convictions entered
    by Justice K.A. Sherwood of the Ontario Court of Justice, dated August 29,
    2017, and on appeal from the sentence imposed on November 28, 2017.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of
    sexual assault. The offences occurred in 1996 and 1997, but were not reported
    until years later. The appellant was charged in 2016, convicted in August 2017,
    and sentenced to 14 months in November 2017. He appeals conviction and sentence.
    The appellant has been on bail pending appeal for 2½ years.

[2]

For the reasons that follow, the appeals are
    dismissed.

[3]

The two complainants, J.P. and C.P., are
    cousins. In 1996 and 1997, J.P. and her mother shared a duplex with J.P.s
    grandmother. J.P. and her mother lived on one side and her grandmother lived on
    the other side.

[4]

C.P. often came to visit her grandmother and
    played with J.P. They moved back and forth between the two parts of the duplex.
    At the relevant time, J.P. was five or six and C.P. was between eight and ten.

[5]

J.P.s mother was involved in a relationship
    with the appellant. He was often at the duplex.

[6]

J.P. and C.P. both described being sexually
    assaulted by the appellant on two occasions. All four occasions occurred at the
    duplex when the complainants were very young. All four incidents involved the
    appellant putting his hand under the complainants clothing, including their underpants.
    On at least three of the four occasions, he digitally penetrated the
    complainants vaginas. On three of the four occasions, the complainants were
    sitting on the appellants lap or knee.

[7]

J.P.s mother testified. She recalled an
    incident when she saw the appellant put his hands under J.P.s covers and near
    her private area. She told the appellant to get away from her daughter. This
    incident was quite similar to one of the assaults described by J.P.

[8]

In addition to describing the two sexual
    assaults, J.P. also testified that the appellant photographed her and C.P. when
    they were in the bath together. J.P.s mother confirmed that the appellant took
    a picture of J.P. alone when J.P. was in the shower. C.P. testified that she
    was not aware of any photos being taken of her when she was in the bath or
    shower.

[9]

The appellant testified and denied the
    allegations. He indicated he had a brief relationship with J.P.s mother in
    late 1996 and early 1997. He ended the relationship because of her lifestyle.
    J.P. and the appellant ended up in a custody dispute over their son. The
    appellant eventually got custody.

[10]

The appellant admitted taking a photograph of
    J.P. when she was in the bathtub. He indicated that J.P.s mother had asked him
    to take the photograph.

[11]

Several witnesses called by the defence gave
    what the trial judge properly characterized as character evidence for the
    appellant. They had little to say about the events giving rise to the charges.

The Conviction Appeal

[12]

There are two grounds of appeal:

·

Did the trial judge err in admitting the
    evidence directly relevant to one count as similar fact evidence on the other
    counts?

·

Did the trial judge apply different levels of
    scrutiny as between the complainants evidence and the appellants evidence?

The Similar Fact Evidence Ruling

[13]

The trial judge ruled the evidence directly
    relevant to each count was admissible on the other counts. He held the evidence
    was admissible to prove the
actus reus
of the allegations in each count.
    In so holding, the trial judge referred to the many similarities between the
    allegations of the two complainants, and the absence of any evidence of
    collusion.

[14]

The appellant does not take issue with the trial
    judges determination the evidence on each count had probative value on the
    other counts. He submits, however, the trial judge failed to balance that
    probative value against the prejudicial effects of admitting the evidence across
    counts.

[15]

The trial judge gave detailed reasons for
    admitting the evidence. He specifically identified the issue on which the
    evidence had probative value. The trial judge described, on at least two
    separate occasions, the nature of the potential prejudice inherent in the admission
    of similar fact evidence. He was obviously alive, both to the probative value
    of the evidence and the nature of the potential prejudice inherent in the
    evidence.

[16]

This was a judge alone trial. There was no
    objection to the joinder on the same information of all four counts. It was
    understood the trial judge would hear the evidence on all counts. He
    specifically alerted himself to both the legitimate and the illegitimate
    purposes for which the evidence can be used. In deciding to admit the evidence,
    he was obviously satisfied the legitimate probative value of the evidence
    outweighed any risk of misusing the evidence. Indeed, it is difficult to see any
    risk that this trial judge would misuse the evidence after repeatedly and
    accurately identifying how the evidence could and could not be used.

The Uneven Scrutiny Argument

[17]

As with most allegations of sexual assaults
    against children, the outcome at trial turned, to a large extent, on the trial
    judges assessment of the credibility of the witnesses. The trial judge dealt
    at length with the credibility and reliability of the complainants testimony.
    He also addressed the appellants credibility. He did so in the context of the
    presumption of innocence and the burden on the Crown to prove its case beyond a
    reasonable doubt.

[18]

The trial judge ultimately rejected the
    appellants evidence as untrue. He believed the complainants evidence.

[19]

The appellants complaint that his evidence was
    subject to a more rigorous examination than the complainants evidence seems
    based in large measure on the different assessments ultimately made by the
    trial judge. Not surprisingly, the evidence of the complainants and the
    evidence of the appellant gave rise to very different credibility
    considerations. The trial judge concluded that the appellants veracity was
    tainted by his obvious animus towards J.P.s mother. Nothing in the
    complainants evidence raised a comparable credibility related issue.

[20]

We see little value, for the purposes of
    appellate review, in comparing the trial judges assessment of the impact on
    the appellants credibility of his animus towards J.P.s mother with the trial
    judges assessment of the impact on the complainants credibility of some
    entirely different feature of their evidence. A trial judges finding that
    factor A had a negative impact on the assessment of one witnesss
    credibility, but a completely different factor B did not have the same impact
    on the assessment of a different witnesss credibility is not uneven scrutiny. To
    the contrary, it reflects a proper individualized assessment of the different
    evidence offered by the different witnesses.

[21]

The trial judge did not err in the manner in
    which he approached and assessed the evidence of the witnesses.

The Sentence Appeal

[22]

The appellant was sentenced to 14 months
    concurrent on the charges. The defence at trial sought a conditional sentence.
    They renew that request on appeal.

[23]

A conditional sentence was legally available. It
    would, however, have been inappropriate. These were serious crimes committed
    against very young victims. The appellant took advantage of his access to the
    duplex through his friendship with J.P.s mother to commit the crimes. The
    nature of the offences fully warranted a significant reformatory sentence. Nothing
    in the character or antecedents of the appellant supports the imposition of a
    non-custodial sentence. The sentence imposed was fit.

[24]

The appellants
    bail pending appeal was varied to allow him to surrender into custody, as
    directed by the court. As his appeals have been dismissed, he shall surrender
    into custody by no later than noon on Friday, May 29, 2020, failing which a
    warrant may issue for his arrest.

Doherty J.A.

R.G. Juriansz J.A.

B.W. Miller J.A.


