



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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 DRA 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. D.J.B., 2018 ONCA 566

DATE: 20180620

DOCKET: C64116

Watt, van Rensburg and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.J.B.

Appellant

Delmar Doucette, for the appellant

Andrew Hotke, for the respondent

Heard: June 14, 2018

On appeal from the conviction
    entered on May 24, 2017, with reasons reported at 2017 ONSC 3207, and the
    sentence imposed on August 16, 2017 by Justice R.J. Harper of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

Overview

[1]

The appellant was convicted of two counts each of sexual touching and
    invitation to sexual touching. The offences involve his then nine-year-old
    granddaughter. He was sentenced to 30 months, concurrent on each count. He
    appeals from his convictions and sentence. At the conclusion of the oral
    hearing, we dismissed both appeals with reasons to follow. These are our
    reasons.

[2]

The complainants parents had an acrimonious separation, after which her
    father had access to the children on weekends. He would stay at his parents
    home when he exercised access. This is where the offences occurred.

[3]

The complainants evidence in-chief was introduced pursuant to s. 715.1
    of the
Criminal Code
by way of video.  Among other things, the
    complainant testified to the following incidents:

(a)

She was standing between the
    appellants legs while he was seated in a chair. The appellant told the
    complainant to give him a kiss, after which he placed both hands on her cheeks,
    moved her face so that her mouth went to his lips, and inserted his tongue into
    her mouth. The complainant testified that while her grandfathers tongue was in
    her mouth, her grandmother (T.B.), returned from her volunteer work and
    walked into the room. T.B. yelled at the appellant and slapped him.

(b)

The next day, the appellant told
    the complainant that he wanted to marry her and attempted to kiss her again.
    This time the complainant slapped him.

(c)

On another occasion, the
    appellant and complainant were in a computer room at the grandparents home.
    The appellant told the complainant to remove her clothes. She was afraid and
    complied. He also removed his clothes. The complainant testified that the
    appellant inspected her by squatting down to examine her private and boobs.
    He said that she looked good and sexy. He grabbed her vaginal area with one
    hand and his penis with the other. The complainant described how the appellant
    held his penis like a sausage and wiggled it, like a worm.

(d)

The final incident occurred in
    the kitchen. The appellant asked the complainant to remove her pants and she
    complied. He also removed his pants. He squatted to examine her body and asked
    her if she wanted to have sex. She said no. He was touching his penis and
    moving closer to the complainant when T.B. entered the kitchen and yelled at
    him.

[4]

The trial judge, who had the benefit of viewing the complainants video
    statement and seeing her cross-examined, concluded that the child was credible
    and her evidence reliable.

[5]

He also had the opportunity to observe the complainants grandmother, T.B.,
    testify for the defence. She was an important defence witness because, among
    other things, she denied ever witnessing any inappropriate contact between the
    appellant and complainant. If the trial judge believed T.B., or had a doubt
    arising from her evidence, then the child complainants version of events would
    have been very badly shaken.

[6]

In the end, the trial judge rejected T.B.s credibility, concluding: I
    find that [T.B.] is not a credible witness.  I do not accept [T.B.s] denial
    that she never observed her husband kissing [the complainant], with his tongue,
    nor her denial that she observed [the complainant] and her husband naked from
    the waist down on another occasion. The trial judge gave several reasons for
    rejecting T.B.s credibility. The first ground of appeal relates to those reasons.

First Ground of Appeal
    from Conviction

[7]

The appellant maintains that the trial judge erred in how he approached
    his credibility findings relating to T.B. We disagree.

[8]

We start with the observation that, absent palpable and overriding
    error, the trial judges credibility findings are owed strong deference by this
    court:
R. v. Sanderson
, 2017 ONCA 470, 349 C.C.C. (3d) 129, at para.
    18. We see no such error. We will briefly touch upon each alleged problem.

[9]

First, the appellant argues that the trial judge was wrong to rely upon
    a discrepancy in the evidence between T.B. and another witness in making his
    credibility assessment. That discrepancy relates to how often the appellant
    would accompany T.B. on her volunteer work. Even if the trial judge were wrong
    to note the discrepancy in the two witnesses evidence as reducing their
    credibility, we do not agree that he rested his finding about the credibility
    and reliability of T.B.s evidence on that discrepancy. Rather, his focus was
    on the fact that T.B. admitted that the appellant did not accompany her at
    least 20 percent of the time. Accordingly, her testimony that she was
    absolutely sure that the appellant was
never
alone with the
    complainant was undermined because she could not know if [the complainant] was
    ever alone with [the appellant] during the times when [he] was not with her. It
    was open to the trial judge to come to this common sense conclusion.

[10]

Second,
    the appellant asserts that the trial judge erred by emphatically stating that
    her son
never
took naps when the children were in the house. It was
    open to the trial judge to find that, given T.B.s work schedule, she could
    not have known if [her son] ever slept while the children were awake. Although
    the appellant submits that T.B. was not as emphatic as the trial judge
    suggested, she testified that she would bet [her] life on it that he did not
    have a nap when he was looking after his kids.

[11]

Third,
    the appellant contends that the trial judge erred in how he dealt with a
    statement T.B. had given to the police, where she acknowledged that she had
    once seen the complainant and appellant alone in the computer room. T.B. told
    the police that she just asked the appellant what he was doing alone in the
    dark with the complainant. The appellant is said to have told T.B. that he was
    showing the complainant the lights from a radio he had in the room.

[12]

The
    appellant maintains that the trial judge erred in characterizing T.B.s request
    to know what her husband and their grandchild were doing in a dark room
    together as a demand as opposed to a request. We do not agree. Bearing in
    mind the context, it was entirely open for the trial judge to characterize the
    evidence in this way.

[13]

The
    appellant also submits that the trial judge reversed the onus of proof when he
    referred to the fact that, although the appellant had told T.B. that he was
    showing the complainant lights from a radio, that there was actually no
    evidence that those radio lights were on. We disagree. There was no evidence
    that the lights were on. The trial judge was simply making an observation that
    there was no evidence of radio lights. This did not reverse the burden of
    proof.

[14]

Fourth,
    the appellant claims that the trial judge erred by misapprehending evidence,
    when he said that T.B. testified that the appellant was never ever alone with
    the complainant. The appellant says that her evidence should have been
    understood as meaning never alone in a room with the complainant. We disagree. The
    witness testified that they had never been alone anywhere, ever. It was open
    to the trial judge to come to the conclusion he did about what T.B. meant when
    she said the appellant was never alone with the complainant.

[15]

Moreover,
    it does not assist the appellant to say that T.B. meant the appellant and
    complainant were never alone in a room together, as T.B.s own comments to the
    police, about seeing the appellant and complainant alone in the computer room
    together, belie this suggestion.

[16]

Finally,
    the appellant takes issue with the trial judges treatment of T.B.s evidence
    regarding a police statement where she said: She told Detective [x] that she
    could never imagine [the appellant] kissing [the complainant]. However, she
    could imagine [the appellant] kissing his adult grandchildren who were
    beautiful. The trial judge found this comment disturbing on so many levels.

[17]

The
    appellant argues that the trial judge took T.B.s comments out of context. He
    says that T.B. meant that she could not imagine the appellant passionately
    kissing a child as opposed to an adult. We do not agree. Given what she told
    the police, it was open to the trial judge to come to the interpretation he
    did.

[18]

We
    see no error in his approach to T.B.s credibility or her evidence.

Second Ground of Appeal
    from Conviction

[19]

The
    appellant submits that the trial judge did not conduct a proper analysis of the
    inconsistencies between the complainants and her mothers evidence regarding
    the circumstances surrounding the original disclosure of the offences. He maintains
    that these inconsistencies give rise to an inference of potential collusion
    between the witnesses. We do not agree.

[20]

The
    trial judge carefully addressed the inconsistencies in the evidence, and he confronted
    and resolved the allegation of collusion. We see no error in his approach.

Appeal from Sentence

[21]

The
    appellant also seeks leave to appeal his 30 month sentence. The appeal rests on
    a fresh evidence application. The evidence is said to have been discovered
    shortly after the sentence was imposed.

[22]

The
    complainants mothers victim impact statement, filed at the sentencing
    hearing, described what she perceived as the impact of the offences on her
    daughter. The statement was signed and dated by the mother. The complainant
    then placed a short handwritten note after the mothers signature. The note
    refers to the fact that the complainant was having a hard time telling [her]
    feelings outload [
sic
] and on paper. It says that she had read her
    mothers victim impact statement about what my life is like now and agreed
    with it. The complainant signed and dated her brief comment.

[23]

The
    fresh evidence consists of a lawyers affidavit explaining that, in light of
    information that was discovered shortly after sentence was imposed, the lawyer interviewed
    the complainant. The complainant told the lawyer that, although she recalled
    her mother reading something to her, she could not recall whether her mother
    read her the entire statement.  The complainant said that she simply copied onto
    the page a comment that her mother had prepared for her. The complainant told
    the lawyer that she was concerned that her mother may become angry if she did
    not copy out what had been written.  The complainant disputed a good deal of
    what her mother had written.

[24]

We
    would not admit the fresh evidence for the following reasons.

[25]

The
    burden is on the applicant to establish that the fresh evidence should be
    received on appeal:
R. v. Palmer
, [1980] 1 S.C.R. 759, at p. 775;
R.
    v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423, at paras. 29-30. He has failed
    to do so.

[26]

Even
    if the hearsay nature of the evidence were to be ignored, the fresh evidence
    would be inadmissible because it cannot reasonably be expected to have
    affected the result:
Sipos
, at para. 29. At its highest, the fresh
    evidence only supports a finding that the complainant does not agree with everything
    her mother said about the impact that the offence has had on her. Even if the
    complainants comments after sentencing had been available at the time of
    sentencing, the mothers victim impact statement  in its entirety  would have
    still been before the court.

[27]

Although
    the reasons for sentence make reference to the complainants brief handwritten agreement
    with the contents of her mothers statement, the sentencing judges reasons
    only make fleeting reference to that fact. The reasons he gives for arriving at
    the disposition appealed from focus on the inherent and indisputable seriousness
    of offences of this nature and the fact that this particular one involved a
    significant breach of trust. As noted by the trial judge, the appellant robbed
    his young grandchild of her sexual innocence.

[28]

Read
    in context, there is no indication that the victim impact statement had an
    effect on sentence. With or without the victim impact statement, the
    appellants sentence would have been the same. The fresh evidence would not
    have affected the result.

[29]

Moreover,
    the applicant has failed to show due diligence. He did not challenge the victim
    impact statement at trial. He did not seek leave to cross-examine either the
    mother or the child before sentence was imposed. Although trial counsel
    suggested that some of the things said in the victim impact statement were
    contrary to the [complainants] testimony  at trial, she did not wish to get
    into the minutiae. Trial counsel was content, properly in our view, to base her
    position on the known and undeniable impact of offences of this nature on
    children:
R. v. D.D.
(2002), 163 C.C.C. (3d) 471 (Ont. C.A.), at
    paras. 35-38. This was a considered and tactical decision made at the time of
    sentencing and should not be second-guessed after sentence has been imposed.

[30]

This
    was a fit sentence.

[31]

The
    conviction appeal is dismissed.

[32]

The
    application to admit fresh evidence is dismissed. Leave to appeal sentence is granted
    and the sentence appeal is dismissed.

David Watt J.A.

K.
    van Rensburg J.A.

Fairburn
    J.A.


