



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. G.C., 2021 ONCA 441

DATE: 20210621

DOCKET: C67883

Doherty, Trotter
    and Thorburn JJ.
A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.C.

Appellant

Mark
    Ertel and Jon Doody, for the appellant

Rebecca
    Schwartz, for the respondent

Heard: June 4, 2021 by video conference

On
    appeal from the convictions entered on September 18, 2019 by Justice Geoffrey
    Griffin of the Ontario Court of Justice.

REASONS FOR DECISION

The Issues

[1]

The appellant G.C. appeals his convictions for
    sexual assault involving three complainants, S.J., H.J. (together referred to
    as the first two complainants) and J.W. (the third complainant). The
    appellant was convicted of sexual assault and sexual exploitation of the first two
    complainants, and sexual assault of the third complainant.

[2]

The convictions turned on the trial judges
    assessment of the credibility of the complainants and the appellant when viewed
    in the context of the evidence as a whole, and the Crowns obligation to prove
    the charges beyond a reasonable doubt.

[3]

The appellant claims that (a) the trial judge
    offended the rule in
R. v. W.(D.)
, [1991] 1 S.C.R. 742, by considering
    and accepting the complainants evidence before considering the appellants
    evidence; (b) he erred in rejecting the appellants evidence without providing
    a considered and reasoned acceptance of the evidence; and (c) he erred in
    relying on the absence of a proven motive as the basis to accept the third complainants
    evidence.

The Trial Judges Reasons for Judgment

[4]

The trial judge gave detailed oral reasons for
    judgment.

[5]

At the outset, he explained the applicable
    standard and burden of proof, and the rule in
W.(D.).
He recognized
    that the key question is whether, on the evidence as a whole, the trier of fact
    is satisfied of the accuseds guilt beyond a reasonable doubt.

[6]

In conducting his analysis of the evidence, the
    trial judge reviewed each complainants evidence as well as the evidence of the
    other crown witnesses including other family members and an employee of the
    Childrens Aid Society, the points raised by the defence, and he explained why
    he accepted each complainants evidence.

[7]

Before considering the appellants evidence, the
    trial judge cautioned himself that the acceptance of the evidence of the complainants
    by no means ends the matter as it is essential that the evidence of [the
    appellant], as well as all the defence evidence, should be assessed in light of
    the whole of the evidence to determine whether he was left with a reasonable
    doubt. He then reviewed the appellants evidence, separately laying out the
    appellants evidence respecting the allegations of each complainant.

[8]

In respect of the allegations made by the first
    two complainants, the trial judge recognized that the appellant was under no
    obligation to prove anything and that the fundamental concepts of onus of
    proof and proof beyond a reasonable doubt must be considered. He also held
    there was no specific aspect of the appellants evidence that caused him to
    disbelieve the appellant. However, when he considered the appellants evidence
    in the context of all the evidence and contrasted it with these complainants
    testimony, he concluded that both complainants were telling the truth and that he
    had no reasonable doubt about the charges at all (save for one that was
    dismissed and is not the subject of this appeal). He was therefore satisfied
    beyond a reasonable doubt that the appellant was guilty of sexually assaulting
    and sexual exploitation of the first two complainants.

[9]

The trial judge accepted the evidence of the
    third complainant, rejected the appellants evidence, and was satisfied beyond
    a reasonable doubt that the appellant sexually assaulted her. He found the
    appellants evidence respecting this allegation to be problematic, as parts
    of his evidence were inconsistent or contrary to common sense. He also found
    the appellants reaction to the allegation troubling. In contrast, he found the
    complainants actions in the face of the alleged assaults to be logical, and held
    that it would have made no sense for her to sabotage her living arrangements
    with the appellant and his spouse, which she sought out and enjoyed, by making
    a false allegation and concluded that the complainants testimony about the appellants
    apology to her had the ring of truth.

Analysis and Conclusion

[10]

In cases such as this, the Supreme Court of
    Canada has recently cautioned that appellate courts must not finely parse the trial
    judges reasons in search for error:
R. v. G.F.
, 2021 SCC 20, at
    para. 69. The Court emphasized both the strong deference due to a trial judges
    credibility findings and the presumption that trial judges must be taken to
    know the law. The presumption applies with particular force when it comes to
    settled principles. As the Court said, at para. 75 of
G.F
., trial
    judges do not need to provide detailed maps of well-trod paths. The Court
    further observed, at paras. 76-79, that reasons which are imperfect or
    language which is ambiguous does not
per se
require allowing an appeal.

[11]

The issues raised by the appellant all relate to
    the proper application of bedrock legal principles and fall on the well-trod
    path referred to by the Supreme Court of Canada.

[12]

The trial judges reasons demonstrate an
    understanding of the presumption of innocence and the application of the burden
    of proof faced with irreconcilable versions of events. The trial judge referred
    to the three-step analysis laid down in
R. v. W.(D.)
early in his
    reasons and instructed himself on the applicable legal principles on at least
    three occasions. He succinctly and accurately put forward the defence  first,
    the appellants denials were sufficiently credible to at least raise a doubt;
    second, the complainants evidence was not sufficiently reliable to carry the
    burden of proof.

[13]

With one exception, the trial judge found the
    evidence of the first two complainants totally believable. However, the trial
    judge did not convict on the basis of that assessment, nor did he arrive at
    that conclusion without regard to the appellants evidence. While he candidly
    acknowledged that he could not point to anything in the appellants denial that
    would cause him to reject the appellants evidence regarding the first two
    complainants, he correctly observed the appellants evidence was not to be
    assessed in isolation, but rather in the context of the entirety of the
    evidence, including but not restricted to that of the complainants.

[14]

The trial judge concluded that on the totality
    of the evidence, bearing in mind the onus of proof, he believed the first two complainants,
    beyond any reasonable doubt. His reasons provide a considered and reasoned
    explanation for accepting the complainants evidence and his conclusion that he
    was satisfied beyond a reasonable doubt of the appellants guilt.

[15]

As noted in
R. v. R.A.
, 2017 ONCA 714, 421
    D.L.R. (4th) 100, at para. 55, affd
2018 SCC 13, [2018]
    1 S.C.R. 307,
an accused person is not entitled to an acquittal simply
    because his evidence does not raise any obvious problems. His evidence may be rejected
    based on considered and reasoned acceptance beyond a reasonable doubt of the
    truth of conflicting credible evidence which may provide as much an
    explanation for the rejection of an accuseds evidence as is a rejection based
    on a problem identified with the way the accused testified or the substance of
    the accuseds evidence:
R. v. J.J.R.D.
(2006)
,
218 O.A.C. 37
    (C.A.), at para. 53, leave to appeal refused, [2007] S.C.C.A. No. 69. This
    is what the trial judge did in this case.

[16]

With respect to the third complainant, the trial
    judge accepted the third complainants evidence and gave reasons for rejecting
    the appellants evidence regarding the third complainants allegation.

[17]

The appellant claims the trial judge erred in treating
    the evidence of the third complainant as demonstrating that she had no motive
    to fabricate. The appellant argues this was not a case of proved absence of
    motive, but rather a case of the absence of evidence of a motive to fabricate.

[18]

In our view, the trial judges observation that
    the third complainant appears to have no motive to make false allegation was
    not a finding that the Crown had proved there was no motive, as the appellant
    suggests, but rather that the third complainant had no apparent motive to fabricate
    her evidence. It was open to the trial judge to make that finding and take it
    into account when assessing the third complainants credibility. In any event,
    the trial judges consideration of whether she had a motive to fabricate
    appears to have played a very minor role in his credibility assessment.

[19]

For these reasons, we dismiss the appeal.

Doherty
    J.A.

Gary
    Trotter J.A.

J.A.
    Thorburn J.A.


