



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    the complainant or a witness shall not be published in any document or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. K.M., 2012 ONCA
    319

DATE: 20120515

DOCKET: C52625

Feldman and Watt JJ.A. and Dambrot J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

K.M.

Appellant

Timothy E. Breen, for the appellant

David Finley, for the respondent

Heard: January 24, 2012

On appeal from the conviction entered on June 3, 2010 by
    Justice John McIsaac of the Superior Court of Justice, sitting without a jury.

M. Dambrot J. (
ad hoc
):

[1]

The appellant appeals from his convictions for sexual assault and
    sexual interference with a person under the age of fourteen, arguing that the
    trial judges reasons for judgment were inadequate. Specifically, he argues that:

1.

The trial judge
    failed to consider all of the evidence in determining the credibility of the
    complainant, and in particular, failed to reconcile or take account of
    significant contradictions, and that this misapprehension of the evidence
    amounted to an error in law; and

2.

The trial judge
    found confirmation of the complainants evidence in evidence that lacked
    sufficient materiality to bear that weight.

The Offences

[2]

The sexual assault and sexual interference charges of which the
    appellant was convicted involved allegations that the appellant molested his
    eldest daughter on a number of occasions. Specifically, the sexual assault
    charge covered the period from August 2, 1985, the complainants third
    birthday, to December 31, 2006, when she was twenty-four. The sexual interference
    charge was limited to the period from January 1, 1988, the day when this
    offence was proclaimed in force, and when the complainant was five, to August
    2, 1990, the complainants eighth birthday. The appellant was acquitted of a
    third count, alleging an invitation to a person under the age of fourteen to
    sexual touching. Although the trial judge accepted the complainants evidence
    concerning the incident that formed the subject matter of count three, the
    Crown conceded and the trial judge concluded that the offence was not made out.
    The complainant was twenty-seven at the time of the trial.

[3]

The appellant and his wife, the complainants mother, were
    married in 1982. The complainant was born six months later. A second daughter
    was born in 1987, and a son in 1990.

[4]

When the complainant was born, the family resided at a rooming
    house in Barrie owned by the appellant. In 1991 or 1992, the appellants wife
    learned that the appellant was involved in an affair, which continued even
    after the appellant told her it had ended. She remained in the marriage due to
    financial dependency until 1995, when she left, taking custody of the children.
    The complainant was about thirteen when her parents separated.

[5]

The complainant testified that when she was three or four, the
    appellant would call her into the bathroom while he was having a bath and would
    play a game with her involving a small wind-up toy called Freddy the Fish. He
    would encourage her to catch it as it moved towards his genitals. When the
    complainant reached to grab the fish, she would brush his penis. This was the
    subject of count three. As I have noted, while the trial judge believed the
    complainants account of these events, he acquitted the appellant of count three
    because in his view the evidence did not make out the offence.

[6]

The complainant also testified that, beginning when she was between
    five and seven years old, and ending when she was nine, the appellant would
    come into her bedroom and lie beside her, naked. She recalled occasions when he
    touched her chest, when she felt his erect penis against her back and when he
    tried to get her to touch his penis. She also recalled seeing the appellant
    masturbate in her bedroom, and expose himself to her in the bathroom and while
    passing her on the stairs.

[7]

On the first occasion when the appellant tried to get the
    complainant to touch his penis, she recalled that the appellant got in bed with
    her, held her close to him, kissed the back of her neck, sucked her earlobes, told
    her that he loved her more than her mother or sister, put his hand down her
    pyjama bottoms, touched her buttocks and asked her to give him her hand. When
    she refused, he took her hand and placed it on his penis. The complainant began
    to cry, pulled away and got out of bed.

[8]

The next morning, the complainant told her mother that daddy
    touched me in a bad way and he tried to make me touch him. Her mother looked
    at her as if she was going to kill her and screamed, I fucking know already.
    He already told me. He was drunk and he thought he was in my room. Her mother
    then grabbed her by the hair and bashed her head on the floor numerous times.
    As a result of this reaction, the complainant never tried to disclose the
    appellants abuse to her mother again.

[9]

The complainants mother was called as a witness by the Crown.
    She denied that the complainant had made such a complaint or that she had assaulted
    her in return, but she confirmed that, on one occasion, the appellant was drunk
    and upset, and told her that he had touched the complainant and he shouldnt
    have. He attributed his behaviour to a lack of sexual attention from his wife.
    The complainants mother said that the appellant was describing an event that
    had just happened, and that it occurred when the complainant was between three
    and ten years old. She assumed that the appellant had engaged in intercourse
    with the complainant. She never observed any inappropriate conduct between the
    appellant and the complainant.

[10]

The complainants mother confirmed that the complainant had a
    bath toy when she was very young called Freddy the Fish and that the appellant
    took daily baths and would normally wear only a bathrobe around the house.

[11]

After the appellant and the complainants mother separated, the
    younger children spent every second weekend with their father, and the
    complainant visited him occasionally. In 1997, the appellant moved to Thornton,
    Ontario with his girlfriend. The complainant continued to visit him on occasion
    in Thornton.

[12]

The complainant testified that on one occasion when she visited
    the appellant with her boyfriend, the appellant came up behind her while she
    was kneading some pie dough in the kitchen. He put his arms around her and
    pressed against her. She could feel his erect penis against her lower back. Her
    boyfriend was in the living room at the time, and could not see what was
    happening.

[13]

On another occasion while visiting the appellant in Thornton, the
    complainant complained of a sore back. The appellant massaged her back while
    she was lying on a couch. The appellant lifted her shirt and unfastened her
    bra, and pulled down her pants. When he asked her to turn over onto her back,
    she complied. He rubbed her stomach and attempted to touch her breasts. She was
    unable to refuse. This episode terminated abruptly when the appellants
    girlfriend returned home and knocked on the locked door.

[14]

On yet another occasion at the appellants home, the appellant,
    who suffered from a bowel disorder, discussed the health benefits of enemas and
    asked the complainant and her brother if they wanted to try it. The brother
    refused, but the complainant agreed. She was intoxicated at the time, and was
    incapable of saying no. She and the appellant went to the bathroom and
    undressed. She gave him an enema first, and he then administered one to her.
    The appellant briefly touched the complainants vagina without her consent.
    When they came out of the bathroom, the appellant told his son that the
    complainant had an enema. The son was shocked.

[15]

When they returned to the living room, the appellant asked the
    complainant to sit on his lap. She agreed. The appellant covered the
    complainant with a blanket, and in his sons presence, put his hand down the
    complainants top and fondled her breast. The complainant said that from her
    brothers facial expression, she thought that he knew what was going on. He was
    a teenager at the time. This was the last time that the appellant sexually
    abused the complainant.

The Complainant

[16]

Although the complainant has a grade twelve education, she
    struggled to get through high school. She has short term memory problems and is
    unable to perform simple arithmetic. She believes that she suffers from an undiagnosed
    learning disability. She is employed as a server in a restaurant.

[17]

As a child, the complainant did not get along well with the
    appellant. She felt that he was too strict and that his discipline was
    excessive. Their relationship improved after he moved to Thornton.

[18]

The complainant testified that she was severely physically and
    psychologically abused by her mother. She was beaten by her mother daily. Her
    siblings were also abused by their mother, but to a lesser extent. Her
    relationship with her mother had improved over the last few years. Her mother
    told her that the appellant was not right in the head and that she should
    stay away from him.

[19]

The complainant exhibited behaviour problems as a child. She had
    a violent temper, and frequently got into trouble at school. She did not get
    along well with others and was often truant. She began using alcohol when she
    was nine years old. She began using narcotics when she was ten years old, and
    hallucinogens when she was eleven or twelve. She used drugs daily during her
    teenage years.

[20]

The complainant suffers from depression and anxiety disorder. She
    has been treated by psychologists and psychiatrists since she was thirteen or
    fourteen. At fifteen, she was hospitalized for several weeks after a psychotic
    episode. She has been hospitalized several more times since then. At one time
    she was diagnosed with bipolar disorder, but a definitive diagnosis is
    difficult because of her chronic substance abuse.

[21]

On January 30, 2008, the complainant was found guilty of
    breaching a condition of an undertaking that she not consume alcohol, and was
    given a conditional discharge.

[22]

The complainant had been sexually assaulted by a music teacher
    when she was in grade three. She reported the matter to the school, and
    subsequently spoke with the police.

The Complaint

[23]

The complainant testified that she had disclosed the appellants
    abuse while attending a twelve step program at Athena Centre. In discussing the
    matter at the Centre, she realized that what was going on was wrong and decided
    to report it.

[24]

On May 10, 2007, about six months after the enema incident, the
    complainant met with detectives and provided a statement in which she reported
    being sexually abused by the appellant. She recalled being in the back seat of
    a police car sometime prior to giving the statement, and complaining of sexual
    abuse by the appellant, but could not remember why she was there. She did
    recall that her partner had been charged with assaulting her, and that she had
    been kicked out of her apartment.

[25]

The complainants mother testified that from the age of 18 or 19,
    the complainant would report inappropriate sexual behaviour on the part of the
    appellant. The complainant called her the night before she went to the police
    and told her that she was ready to tell her story.

The Defence

[26]

The complainants brother was the only defence witness. He
    recalled occasions when he and the complainant had both been at the appellants
    home in Thornton together. On those occasions, the appellant and the
    complainant would both consume alcohol, but he would not. He had no specific
    recollection of any incident where there had been a problem, and did not recall
    the enema incident. He thought that if it had happened, he would remember it.
    He never saw the appellant touch the complainant inappropriately.

The Reasons for Judgment

[27]

After reviewing the evidence in some detail, and giving himself a
    so-called
Vetrovec

warning about the complainants
evidence (in effect, as he put it, a reminder that her
    evidence was inherently unreliable because of the bizarre nature of some of her
    allegations against her father, and that it was dangerous to convict on the
    basis of her evidence
unless confirmed by independent
evidence: see
Vetrovec v. The Queen
,
[1982] 1
    S.C.R. 811
) the trial judge gave his
    reas
ons for finding the appellant guilty of the first two counts in the
    indictment. In doing so, he divided the many allegations made by the
    complainant against the appellant into two categories: (1) the incidents at the
    family home in Barrie when the complainant was between three and thirteen years
    old; and (2) the incidents in Thornton, when she was a teenager and young
    adult. I note that count one, the sexual assault offence, includes alleged
    misconduct at both locations, while count two, the sexual interference offence,
    includes alleged misconduct exclusively at the family home in Barrie.

[28]

With respect to the Thornton incidents, the trial judge noted
    that there was absolutely no independent support for the complainants
    allegations, and that in fact, there was independent testimony from her brother
    refuting the enema incident. For those reasons, the trial judge concluded that
    the Crown had failed to establish those allegations beyond a reasonable doubt.

[29]

With respect to the Barrie incidents, the trial judge believed the
    complainant, and on that basis he found the appellant guilty of both count one and
    count two. He was able to reach this conclusion because there was some
    independent evidence supporting the complainants complaint. The most
    compelling confirmation was the evidence of the complainants mother that the
    appellant confessed to some form of inappropriate touching of the complainant
    when the complainant was still quite young. Although the complainants mother
    did not support the complainants evidence that she disclosed the abuse to her
    mother and that her mother responded violently, the support that the
    complainants mother did provide gave the trial judge confidence in accepting
    this part of the complainants evidence. He went on to say that the complainants
    mothers evidence that she had a Freddy the Fish bathtub toy, and that the appellant
    would parade around the house dressed only in a bathrobe supported the
    complainants evidence to a lesser degree.

[30]

In addition, the trial judge specifically found the complainants
    mother to be truthful despite the fact that she was a somewhat passive
    individual. He did not accept the defence submission that she was evasive,
    forgetful and unconvincing, or that she exaggerated about the appellants alcohol
    consumption.

Analysis

1.  Failure to consider all of the evidence

[31]

In essence, the appellant complained that trial judge found the
    complainant credible without explaining how he reconciled her psychological
    history, and the significant contradictions between her evidence and the
    evidence of her brother, and to a lesser extent the evidence of her mother.

[32]

I would not give effect to this argument. The trial judge was
    well aware of the frailties in the complainants evidence. Before reaching any
    conclusions about the credibility or reliability of the complainants
    allegations, he summarized the evidence, including the contradictions between
    the complainants evidence and the evidence given by her mother and brother. The
    trial judge then made reference to the complainants psychiatric problems and
    her drug and alcohol abuse, and the lateness of her complaint. Next, as I have
    already noted, he cautioned himself about the complainants evidence. He gave
    himself a so-called
Vetrovec

warning, reminding himself that
    she should be treated as a suspect witness whose testimony should be
    supported by independent evidence before being accepted. He gave himself this
    warning, as I have noted, because of the bizarre nature of some of her
    allegations against her father, specifically the enema incident, and her claim
    that her father exercised power over her ability to resist his illicit
    suggestions.

[33]

Only then did the trial judge analyze the allegations made by the
    complainant against the appellant. In relation to the Thornton allegations, as
    I have already mentioned, after noting the absence of independent support for the
    complainants allegations, and the independent evidence of her brother refuting
    the enema incident, he found that the Crown had not established those
    allegations beyond a reasonable doubt. This was despite the fact that, in the
    end, he found the complainant to be truthful about past events.

[34]

With respect to the Barrie allegations, he found some independent
    evidence supporting the complainants evidence, specifically her mothers
    evidence about the appellants evidence, and, to a lesser degree, the evidence
    about the existence of a Freddy the Fish bathtub toy, and the appellant
    parading around in a bathrobe, despite the fact, as he noted, that the
    complainants mother did not support the complainants evidence about her
    disclosure to her mother, or her mothers violent reaction. In the end, he
    rejected the suggestion that the complainant was evasive, forgetful or
    unconvincing in her testimony, and indicated that he was satisfied that she was
    truthful of past events, and was satisfied that the Crown had established the
    Barrie allegations beyond a reasonable doubt.

[35]

In my view, the trial judges approach to the evidence was
    unassailable. After considering all the evidence, including the frailties
    outlined by the appellant, he found the complainant truthful in relation to
    past events. Despite this, with respect to the Thornton allegations, in the
    absence of confirmation, and in the presence of some contradiction, he said
    that he was not satisfied that the Crown had met its onus of proof. On the
    other hand, in respect of the Barrie incidents, in the presence of some
    confirmation, and in the absence of material contradiction, he said that he was
    satisfied that the Crown had met its onus. In my view, he was not required to
    do more.

[36]

The appellant complains, in particular, that the trial judge
    failed to reconcile his rejection of the complainants evidence about the
    Thornton allegations with his acceptance of her evidence about the Barrie allegations.
    I note, first of all, that the trial judge did not reject the complainants
    evidence about the Thornton allegations. He simply found that the Crowns
    burden of proof had not been met. But even if it could be said that the trial
    judge rejected the complainants evidence about the Thornton allegations, his
    alleged failure to reconcile this rejection with his positive findings about
    her evidence in relation to the Barrie allegations did not render his reasons deficient.
    It was open to the trial judge to accept some of the complainants evidence
    while rejecting other parts of her evidence. His reasons for doing so were
    clearly explained. (See
R. v. R.E.M.
, [2008] 3 S.C.R. 3.) There is no
    merit to this complaint. I would not give effect to this ground of appeal.

2. The confirmation lacked sufficient materiality

[37]

The appellant argues that the trial judge found confirmation of
    the complainants evidence in evidence that lacked sufficient materiality to
    bear that weight. He complains that the appellants confession to the
    complainants mother was too vague, particularly because she could only say
    that it occurred sometime over a seven year period. He further complains that
    the existence of the complainants bath toy and the appellants habit of
    wearing a robe cannot serve as confirmation.

[38]

I do not agree. It must be remembered that evidence that strengthens
    the belief in the veracity of a tainted witness can be confirmatory even though
    it does not provide direct support for the allegation of misconduct. (See
Law
    Society of Upper Canada v. Neinstein
(2010), 99 O.R. (3d) 1 (C.A.)) Here,
    the evidence of the confession made by the appellant to his wife at the time
    was undoubtedly too vague to found conviction on its own. But it was certainly
    capable of confirming the evidence of the complainant.

[39]

With respect to the evidence about the existence of a fish
    bathtub toy, and the appellant parading around in a bathrobe, I am of the view
    that its confirmatory value was slight. While this evidence is directed to
    important parts of the complainants allegations, it is too commonplace to
    carry much weight. It is apparent, however, that the trial judge did not afford
    it great weight.  He made only a passing reference to it, and described it as
    supporting the complainants evidence to a lesser degree. On the other hand, he
    described the confession as the most compelling factor, and said that it
    provided sufficient support of the complainants complaint to give him
    confidence in accepting this part of her allegation against the appellant. Having
    regard to the significance he placed on the confession, I see no error in the
    trial judges additional reference to this minimally confirmatory evidence.  I
    would not give effect to this ground of appeal.

Disposition

[40]

In my view, this appeal must be dismissed.

Released: May 15, 2012 (K.F.)

M. Dambrot J. (
ad hoc
)

I agree K. Feldman J.A.

I agree David Watt J.A.


