



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    that could identify the complainant or a witness shall not be published in any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.




COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. A.T., 2014 ONCA 126

DATE: 20140218

DOCKET: C57100

Gillese, Rouleau and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.T.

Appellant

Marc E. Schiffer, for the appellant

Michelle Campbell, for the respondent

Heard: February 11, 2014

On appeal from the conviction entered on January 10, 2013
    by Justice Nancy Mossip of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant appeals from his conviction for sexual assault and interference. 
    The sexual assault was stayed pursuant to the
Kienapple

principle.
    He argues that the verdict is unreasonable and that the trial judge
    misapprehended the evidence.


[2]

The appellant points to several
    inconsistencies, mistakes and fabrications in the complainants testimony that
    he argues render the testimony incapable of proving that the sexual assaults
    were committed beyond a reasonable doubt.

[3]

Distilled to its core, the appellants
    argument is an attack on the credibility and reliability findings of the trial
    judge.

[4]

We do not agree that the trial judge
    committed any error that warrants appellate intervention.

[5]

One of the main arguments advanced by
    the appellant is that the trial judge misapprehended the complainants
    evidence, because the complainant was confused as to who assaulted her, if she
    was in fact assaulted.  The appellant submits that when the complainant
    referred to her dad, as the perpetrator of the assaults, it was not clear from
    the evidence whether she was referring to her biological father or her mothers
    boyfriend with whom she had lived previously.

[6]

We do not agree that the trial judge
    misapprehended the evidence.  The complainant was five years old when she told
    her kindergarten teacher that she did not want to go home because her dad was
    hurting her by putting his finger or fingers in her bum.  At the time of the
    allegation, she had lived with the appellant, who was also her biological
    father, for about five months.  While she had, in the recent past, lived with
    her mother and her mothers boyfriend, the trial judge after having reviewed
    all the evidence was satisfied beyond a reasonable doubt that there was no
    confusion on the part of the complainant at the time when she testified as to
    the identity of the perpetrator of the sexual assault.  At the time of trial, the
    complainant was seven years old.  While there were some inconsistencies and
    mistakes in her evidence, she never resiled from the core of her initial complaint
    that she was sexually assaulted by her daddy who placed his finger or fingers
    in her bum, and she did not waver from her claim that the perpetrator of the
    sexual assault was the appellant.  The appellant did not testify.

[7]

In her reasons for judgment, the trial
    judge accurately identified the legal principles that apply to the assessment
    of the testimony of child witnesses.  She heeded the principle that judges are
    to take a common sense approach in dealing with the testimony of young
    children:
R. v. B.(G.)
,
[1990] 2
    S.C.R. 30.  She considered the difficulties, inconsistencies, and mistakes in
    the complainants evidence.  After weighing all the evidence, she found the complainant
    to be both reliable and credible.  We see no error in her approach to the
    evidence or in her application of the appropriate legal principles relevant to
    the facts of this case.

[8]

The trial judges credibility
    assessment is owed a high degree of deference by this court.  While this court
    is entitled, to an extent, to re-examine and re-weigh the evidence pursuant to
    s. 686(1)(a)(i) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, an appellate court is not entitled to retry the case. 
    Particular caution is warranted when reviewing a credibility finding of a child
    witness: see
R. v. W.(R.)
,
[1992] 2
    S.C.R. 122.  The trial judge was fully aware of the frailties in the
    complainants testimony and nevertheless found her credible.  Her conclusion
    that the child complainant provided a reliable and credible account of the
    critical facts relating to the sexual assaults is owed deference.

[9]

We are also satisfied that the trial
    judge did not rely on the complainants admissions of prior fabrications to
    conclude that she was not fabricating the incidents in this case.  In our view,
    the trial judge was simply explaining the basis for his finding that the child
    complainant understood the nature and consequences of a lie and why the
    complainants admissions of prior fabrications did not impair her credibility.

[10]

The trial judge did not misapprehend
    the evidence before her, and her verdict was reasonable.  The appeal is
    dismissed.

E.E. Gillese J.A.

Paul Rouleau J.A.

M. Tulloch J.A.


