



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. S.H., 2021 ONCA 41

DATE: 20210121

DOCKET: C64838

Juriansz, Tulloch and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.H.

Appellant

Howard Krongold, for the appellant

Michael Dunn, for the respondent

Heard: January 15, 2021 by
    videoconference

On appeal from the convictions entered
    by Justice W. Danial Newton of the Superior Court of Justice on July 8, 2016,
    with reasons reported at 2016 ONSC 4492.

REASONS FOR DECISION


[1]

The trial judge convicted the appellant of sexual
    interference, contrary to s. 151 of the
Criminal Code
, and sexual
    assault, contrary to s. 271 of the
Criminal

Code
. The
    appellant was found to have committed these offences against the complainant,
    his step-daughter, on an almost daily basis, over a number of years.

[2]

At the trial, the complainant testified about
    the alleged sexual abuse. She also testified that after she told her mother
    about the abuse, the appellant came into her room and apologized to her.

[3]

The complainants mother testified that after
    the complainant told her of the sexual abuse, she confronted the appellant, who
    did not deny the allegations but said he could not remember, perhaps because he
    had consumed drugs. She testified that she then heard the appellant apologize
    to the complainant, and that the appellant left the family home the next day.

[4]

In his testimony, the appellant denied the
    alleged sexual acts and denied apologizing to the complainant. He said that he
    left the house because the complainants mother admitted that she was having an
    affair. The appellant suggested that the complainants allegations were
    motivated by his response to the complainant being caught shoplifting, and that
    the complainants prior complaints to her friends had been motivated by the negative
    influence of those friends, and her desire to fit in.

[5]

In his decision finding the appellant guilty,
    the trial judge accurately set out the principles in
R. v. W.(D.)
,
[1991] 1 S.C.R. 742, for the
    application of the reasonable doubt standard in credibility cases. He
    identified the three stages in the
W.(D.)
analysis that are
    customarily described, including by citing the formula expressed in
W.(D.)
,
    at p. 758:

First, if you believe the evidence of the
    accused, obviously you must acquit.

Second, if you do not believe the testimony of
    the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by
    the evidence of the accused, you must ask yourself whether, on the basis of the
    evidence which you do accept, you are convinced beyond a reasonable doubt by
    that evidence of the guilt of the accused.

[6]

In the analysis section of his reasons for
    decision, the trial judge explained that he did not accept the appellants
    evidence, and that he was satisfied of the appellants guilt beyond a
    reasonable doubt based on the evidence he did accept, namely the testimony of
    the complainant and her mother. These holdings address the first and third
    steps in the
W.(D.)

analysis. In describing his analysis, the
    trial judge did not expressly address the second stage of the
W.(D.)

analysis.

[7]

The appellant urges us to find that despite
    citing the principles correctly, the trial judge misapplied the law by failing
    to consider the second stage of the
W.(D.)

analysis. He
    therefore asks that his convictions be set aside and that a new trial be
    ordered.

[8]

Notwithstanding that the trial judge did not
    advert expressly in his analysis to the second stage of
W.(D.)
, we are
    not persuaded that the trial judge committed this error.

[9]

It is telling that the trial judge did not
    simply reproduce the
W.(D.)
formula in his decision. He said that he was
    obliged to consider each step in his reasoning, and, commendably, explained what
    each of those steps entails. This included a two paragraph explanation of how
    the second stage of the
W.(D.)

analysis was to be conducted, culminating
    in a self-direction that even if he does not believe the accused, the trial
    judge must consider the accuseds evidence in the context of the evidence as a
    whole to determine whether he may nonetheless have a reasonable doubt as to the
    accuseds guilt.

[10]

The trial judges detailed examination of the
    law is instructive on the ground of appeal before us. In order to accept that
    the trial judge failed to apply the second stage of the
W.(D.)
analysis, we would have to infer that the trial judge somehow failed to
    undertake the very analysis that he not only said he would undertake but
    explained in appreciable detail. A review of the reasons for decision does not
    support this conclusion. When the decision is read as a whole, it can be
    inferred that the trial judge rejected the appellants exculpatory testimony in
    its entirety, leaving that testimony incapable of raising a reasonable doubt.

[11]

This can be seen most clearly in the trial judges
    treatment of the appellants explanation for his abrupt departure from the
    family home. Although the trial judge did not say so expressly, he clearly concluded
    that this testimony was contrived. That the trial judge reached that conclusion
    is apparent from the trial judges explanation that this testimony so undercut
    the appellants credibility that his denial of the assaults could not be
    accepted.

[12]

The trial judge then moved on to the appellants
    testimony about the influence of the complainants friends on her prior
    complaints, and said, I
also
reject [that] assertion (emphasis added).
    Here, also is clearly a reference to the trial judges finding, made
    immediately prior, that he did not accept the appellants denial that he
    assaulted the complainant. It follows, from the use of also in reference to
    the friends influence, that the trial judge rejected the appellants
    exculpatory denial. Put otherwise, the trial judge not only found that he did
    not affirmatively believe the appellants denial, he rejected it in its
    entirety leaving it incapable of raising a reasonable doubt.

[13]

To be sure, it would have been preferable for the
    trial judge to expressly address each of the three
W.(D.)
stages in
    his analysis. Had he done so, it is unlikely that the decision would have been
    appealed. Had it been appealed, it would not have been necessary to provide the
    close analysis just undertaken to determine whether an error occurred. Having
    undertaken that exercise, however, we are not persuaded that the law was
    misapplied.

[14]

The appeal is therefore dismissed.

R.G.
    Juriansz J.A.

M.
    Tulloch J.A.

David
    M. Paciocco J.A.


