



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Fells, 2018 ONCA 881

DATE: 20181106

DOCKET: C63995

Simmons, Juriansz and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Fells

Appellant

Ingrid Grant, for the appellant

Joe Hanna, for the respondent

Heard: October 26, 2018

On appeal from the conviction entered on January 31,
    2014, by Justice Harvison Young of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

[1]

The appellant had multiple assault convictions relating to tricking
    women into submitting to foot massages and then surreptitiously rubbing his
    penis on their feet. The convictions date back to April 2008 and March 2011. As
    a result of the 2011 convictions, he was sentenced to a term of imprisonment
    plus probation, which included terms that he keep the peace and be of good
    behaviour, that he not touch any persons feet without their consent, and that
    he not represent himself as either involved in, or having had, training for
    massage therapy.

[2]

The appellant was released from prison on January 2, 2012. On that day
    he went to an apartment in Toronto where he stayed until January 12, 2012. He
    then went to a London residence until the morning of January 13, 2012. The
    trial judge found that while in both Toronto and London the appellant breached
    the terms of his probation by holding himself out as a massage therapy student
    and that in London, he unlawfully confined, assaulted, and threatened a nine
    year old girl, A.F., in the basement of her home and that he also sexually
    assaulted her by forcing her to rub her feet on his penis.

[3]

The appellant appeals against his convictions on counts 6 to 12 of the
    indictment, being all but one of the London charges.

[4]

The appellant raises three issues on appeal.

[5]

First, he argues that the trial judge erred by failing to adequately
    scrutinize the evidence of A.F. and give reasons for her acceptance of A.F.s
    evidence. In this regard, the appellant asserts that there were multiple fabrications
    and implausibilities in the complainant's evidence and that the trial judge
    either failed to explain how she resolved them or resorted to speculation to do
    so.

[6]

We do not accept these submissions. In our view, the trial judge
    recognized the problems with the complainant's evidence but also recognized
    that the complainant was nine at the time of the alleged events and eleven when
    she testified at trial. The child gave a police statement the day after the
    alleged events and had also testified at the preliminary inquiry. Not
    surprisingly, she was not able to provide a consistent chronology of how the
    events unfolded. The trial judge assessed the complainant as unsophisticated
    and noted that one of her teachers had described her as a struggling student,
    but the trial judge concluded she was a child who was trying to tell the truth.

[7]

Significantly, although the trial judge found the complainants
    allegations that she was assaulted upstairs had not been established, she
    concluded that the complainant was unshaken in her core allegations about what
    happened in the basement, namely that the appellant blocked her from leaving
    the basement, grabbed her by the wrist and arm, forced her onto a mattress,
    threatened her and rubbed his penis against her feet. Notably, numerous
    complainants had described the appellant engaging in the latter behaviour. This
    provided powerful support for A.F.'s complaint of sexual assault.

[8]

The trial judge noted there were other less reliable aspects of the
    complainant's testimony, however, she concluded that these frailties were
    explained by the passage of time, the child's focus on the frightening event
    that occurred, the child's nervousness and eventual fatigue while testifying,
    and the fact that many of the frailties were peripheral to the core event that
    happened in the basement. Although the trial judge did not resolve each and
    every inconsistency raised by the appellant, she was not required to. It was
    her job to weigh the evidence and assess whether the complainant's evidence was
    sufficiently reliable and credible to be relied upon. She explained that the
    child was unshaken in her central allegations and that a key aspect of those
    allegations was supported by powerful corroborative evidence.

[9]

Second, the appellant argues that the trial judge misused the similar
    fact evidence, using it to corroborate evidence that it contradicted.

[10]

We
    reject this argument. As noted by the trial judge, in the absence of collusion
    or conspiracy, findings the appellant does not challenge on appeal, it was
    objectively impossible that A.F. could have described the sexual conduct in
    which the appellant had engaged if it had not occurred. In the trial judges
    view, the fact that the appellant had used trickery rather than force with the
    prior adult complainants did not detract from the weight of the similar fact
    evidence in supporting the complainant's evidence. The trial judge assessed the
    complainant as unshaken in her evidence of how the incident unfolded. She believed
    that the appellant resorted to force to get this young complainant to comply
    with his request.  That was her call to make.

[11]

Third,
    the appellant argues that the trial judge misapprehended the defence evidence.

[12]

This
    argument relates to defence evidence from two of the complainant's teachers
    concerning the timing of the complainant's disclosure to them. This evidence
    lacked sufficient force to detract from the complainants evidence. The trial
    judge treated it as such.

[13]

Despite
    the able submissions of counsel, the conviction appeal is dismissed. The
    sentence appeal is dismissed as abandoned in accordance with the previously
    filed notice of abandonment.

Janet Simmons J.A.

R.G. Juriansz J.A.

M.L. Benotto J.A.


