



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. A.F., 2016 ONCA 263

DATE: 20160412

DOCKET: C58002

Feldman, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.F.

Appellant

Russell Silverstein, for the appellant

Kevin Rawluk, for the respondent

Heard: March 10, 2016

On appeal from the convictions entered on August 9, 2013
    by Justice David Salmers of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

A.F. appeals from his convictions by a judge, sitting without a jury, for
    sexual offences involving his step-granddaughter. The offences include two
    counts each of sexual interference and invitation to sexual touching and one
    count each of sexual exploitation, sexual assault, and possession of child
    pornography. The sexual assault conviction was stayed pursuant to
R. v.
    Kienapple
, [1975] 1 S.C.R. 729.

[2]

The offences took place when the complainant was between 11 and 16 years
    of age.

[3]

The credibility of the complainant and of the appellant was the central
    issue at trial. However, there was significant evidence confirming the
    complainants account of the abuse, as is outlined below, including text
    messages to the complainant that were deleted from the appellants cell phone,
    one of which instructed the complainant to Get nude and get on top for a min.

[4]

The appellant raises three issues on appeal. First, he submits that the
    trial judge erred by scrutinizing the appellants evidence more strictly than
    the complainants. Second, he submits that the trial judge misapprehended two
    aspects of the evidence. Third, he submits that the trial judge failed to properly
    apply the test in
R. v. W.(D.),
[1991] 1 S.C.R. 742
.
The
    appellant also brings a motion to introduce fresh evidence.

[5]

We reject these arguments and the appellants motion to introduce fresh
    evidence for the reasons that follow.

(1)

Different Standards of Scrutiny

[6]

It is well established that it is difficult to succeed on a different standards
    of scrutiny argument on appeal. As Laskin J.A. explained in

R. v.
    Aird
, 2013 ONCA 447, 307 O.A.C. 183, at para. 39:

It is difficult for two related reasons: credibility findings
    are the province of the trial judge and attract a very high degree of deference
    on appeal; and appellate courts invariably view this argument with skepticism,
    seeing it as a veiled invitation to reassess the trial judges credibility
    determinations.

In
R. v.
    J.H
.
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, Doherty J.A. said:

To succeed in this kind of argument, the appellant must point
    to something in the reasons of the trial judge or perhaps elsewhere in the
    record that make it clear that the trial judge had applied different standards
    in assessing the evidence of the appellant and the complainant.

[7]

The appellant contends that the trial judge failed to address
    inconsistencies in the complainants evidence and uncritically accepted
    favourable interpretations of her evidence. In contrast, the trial judge wrongly
    discounted the evidence of the complainants cousin, B., which supported the testimony
    of the appellant, and failed to consider the appellants level of intelligence,
    his anxiety about testifying, or whether inconsistencies in his evidence could
    be attributed to bad memory.

[8]

We disagree.

[9]

The trial judge carefully scrutinized the complainants evidence. He
    acknowledged inconsistencies in her testimony and determined how much weight
    they should carry. He provided clear and cogent reasons for accepting much ­
    but not all  of the complainants evidence. It was open to the trial judge to
    do so and there is no basis for this court to interfere with his findings.

[10]

The
    same is true of the trial judges evaluation of the evidence provided by the
    complainants cousin. The trial judge acknowledged that the complainants
    allegations of sexual abuse were not supported by her cousins testimony that
    she had never seen anything improper between the complainant and the appellant,
    or experienced anything improper herself. The trial judge carefully considered
    the cousins testimony and decided to give her evidence limited weight. The
    trial judge found that the cousins testimony did not support a finding that
    the appellant lacked opportunity to do what was alleged or that he had made the
    same get nude statements to other grandchildren in circumstances that were
    not improper. It was open to the trial judge to make these findings, and his treatment
    of the cousins evidence does not constitute legal error.

[11]

The
    trial judge noted many problems with the appellants testimony and found that
    he was tremendously evasive during cross-examination. The trial judge found
    that the appellants testimony often did not make sense. It changed many times,
    concerning both unimportant and significant matters, and was often inconsistent
    with his statement to the police. These findings were open to the trial judge
    and are entitled to deference from this court.

[12]

The
    trial judges reasons reflect a careful consideration of the appellants
    evidence and are well-founded in the trial record. There is no basis to
    conclude that the trial judge applied different standards of scrutiny to the
    evidence at trial.

[13]

We
    reject this ground of appeal.

(2)

Misapprehension of the Evidence

[14]

Although
    the appellants primary submission was framed as a different standards of
    scrutiny argument, in oral argument the appellant raised what he characterized
    as misapprehensions of the evidence by the trial judge. First, the appellant
    says the trial judge misapprehended the evidence concerning the colour of the
    appellants pubic hair. Second, the trial judge misapprehended the evidence concerning
    the complainants knowledge of distinguishing features on the appellants body
    and the sort of underwear he wore. The appellant submits that the first error
    resulted in a failure to discount the complainants credibility, while the
    second resulted in improper enhancement of the complainants credibility.

[15]

In
    her statement, the complainant described the appellants pubic hair as grey,
    but at trial she testified that it was black and grey. A friend of the
    appellant testified that the complainant was present, along with several
    others, at a discussion at the appellants home prior to trial and that the
    colour of the appellants pubic hair was discussed. The friend testified that
    his wife asked the appellants wife: Is [the appellant] grey down there?, and
    that the appellants wife answered: No, hes not.

[16]

The
    appellants wife did not testify at trial. The only other evidence on pubic
    hair colour came from the appellants family physician, who testified that the
    appellant had brown pubic hair.

[17]

The
    trial judge did not misapprehend the evidence concerning pubic hair colour. He recognized
    that the complainants inconsistency raised concerns about her credibility. The
    trial judge considered all of the evidence on the pubic hair issue, found that it
    did not assist him, and reduced the weight given to all of the pubic hair evidence
    as a result. That finding was open to the trial judge.

[18]

It
    is clear, however, that the trial judge misapprehended the evidence concerning
    the complainants knowledge of a scar on the appellants hip. The trial judge
    rejected the appellants testimony that the complainant would have seen the
    scar when she visited the appellant in hospital following hip surgery, but the
    complainant testified that she saw it at the hospital. The Crown concedes that
    this is a misapprehension of the evidence, and that there was no evidence
    confirming the complainants testimony concerning either the brand of underwear
    worn by the appellant or the existence of a red spot on the appellants leg
    close to his groin.

[19]

However,
    it is not enough for the appellant to identify a misapprehension of the evidence
    in order to succeed. As Binnie J. stated in
R. v. Lohrer
,
2004
    SCC 80, [2004] 3 S.C.R. 732 at para. 2:

The misapprehension of the evidence must go to the
    substance rather than to the detail. It must be material rather than peripheral
    to the reasoning of the trial judge.  Once those hurdles are surmounted,
    there is the further hurdle (the test is expressed as conjunctive rather than
    disjunctive) that the errors thus identified must play an essential part not
    just in the narrative of the judgment but in the reasoning process resulting
    in a conviction (citing
R. v. Morrissey
(1995),
    97 C.C.C. (3d) 193 at 221).

[20]


The test is not satisfied in this case.

[21]

The
    trial judge found that the misapprehended evidence enhanced the complainants
    credibility, but her credibility did not turn on that evidence. The trial judge
    provided many reasons for accepting the complainants account of the abuse,
    including:

1.

her compelling disclosure of abuse and her answers to open-ended
    questions during her statement to the police;

2.

her maintenance of her allegations knowing that she was on her own and
    the possible harm it would cause to her family;

3.

her demeanour;

4.

the age-appropriate nature of her testimony;

5.

her candour about receiving money from the appellant;

6.

her absence of a motive to fabricate;

7.

the good relationship between the complainant, her mother, and the
    appellant prior to the complainant making her disclosures;

8.

her disclosure to her mother, after prodding, subsequent to her mother
    overhearing a phone conversation in which the appellant used a sexy tone and
    arranged to meet the complainant at a school; and,

9.

significantly, the deleted text messages recovered from the appellants
    cellphone including, in addition to the text message noted above, text messages
    from the appellant to the complainant saying pics please; then kiss u all
    over; and for me (sent one minute after the complainant asked the appellant
    for money); as well as a message from the complainant saying: Dont say
    anything in reference to her friend having her phone.

[22]

Moreover,
    as noted above, the trial judge outlined many cogent reasons for rejecting the
    appellants testimony, including his evasiveness during cross-examination. The
    appellants testimony often did not make sense, changed many times, and was
    often inconsistent with his statement to the police.

[23]

In
    summary, the misapprehension of the evidence did not play an essential part
in the reasoning process resulting in the convictions
. This
    ground of appeal must be rejected.

(3)

W. (D.)

[24]

The
    appellants argument that the trial judge erred in applying the test in
R. v.
    W. (D.)
was not pursued in oral argument. We are satisfied the trial judge
    properly identified and applied the test. The trial judge reiterated that the
    burden of proof beyond a reasonable doubt remained on the Crown at all times.
    He rejected the appellants evidence, did not have a reasonable doubt as a
    result of it, and concluded on the basis of the whole of the evidence that the
    case had been proved beyond a reasonable doubt.

(4)

Fresh Evidence

[25]

The
    appellant sought to adduce fresh expert evidence in relation to the colour of his
    pubic hair, indicating that it was brown and had not been dyed.

[26]

In
    our view, the appellant fails to meet the requirements for the admission of
    fresh evidence set out in
Palmer v. The Queen
, [1980] 1 S.C.R. 759.
    The evidence could have been adduced at trial with due diligence; it does not
    bear upon a decisive or potentially decisive issue at trial; and although it is
    credible, taken with the other evidence, it could not reasonably be expected to
    have affected the result. Although the complainants evidence concerning the
    colour of the appellants pubic hair was inconsistent, the trial judge
    acknowledged and addressed the inconsistency, and there was ample evidence to
    support the appellants convictions.

[27]

The
    appeal is dismissed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

Grant
    Huscroft J.A.


