



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C.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    the victim shall not be published in any document or broadcast or transmitted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. A.A.G., 2020 ONCA 356

DATE: 20200608

DOCKET: C66132

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.A.G.

Appellant

Margaret Bojanowska, for the appellant

Emily Marrocco, for the respondent

Heard: In-writing

On appeal from the convictions entered
    on December 1, 2015 by Justice Timothy D. Ray of the Superior Court of Justice,
    with reasons reported at 2015 ONSC 7476.

REASONS FOR DECISION


[1]

The appellant was convicted of multiple offences
    arising from historical sexual assaults of S.M. (the young daughter of his former
    common law spouse, A.W.), as well as physical assaults of A.W., S.M., and A.W.s
    son E.M.

[2]

The appellant first met A.W. in 2001. Four
    months later, he moved in with her and her three children at their home in
    Surrey, British Columbia. S.M. was then aged 10, E.M. was 8, and A.X., 6. A few
    months later, in 2002, the family packed into a panel van with improvised
    seating and travelled for a month to Ontario. They eventually settled in Ottawa
    after lengthy stays in Windsor and Niagara Falls.

[3]

The household was characterized by dysfunction, rampant
    drug abuse, violence, and neglect. As they travelled, the family attracted the
    attention of local childrens aid societies.

[4]

At trial, S.M. testified to incidents of sexual
    abuse starting when the family lived in B.C., escalating on the drive to Ontario,
    and carrying on in the years subsequent. The incidents reported by S.M.
    included sexual touching, forced oral sex and vaginal intercourse, sometimes
    facilitated by forced consumption of marijuana or sleeping pills. The charges against
    the appellant all relate to incidents taking place in Ontario between January
    1, 2003 and June 22, 2005.

[5]

Once in Ontario, A.W. became increasingly
    incapacitated by her drug use, mostly keeping to her bedroom. She did not keep
    a close watch on S.M. Consequently, S.M. was frequently alone with the
    appellant. On the appellants own evidence, he spent much more time with S.M.
    than the other children, and his attention to S.M. caused conflict with A.W. Even
    after he split from A.W. and moved out of the familys residence in Ottawa, he
    still walked S.M. to school. According to the appellant, he would sometimes take
    S.M. to the house where he was living instead of going to school, if he thought
    her clothing was inappropriate for school. The appellant testified that S.M.
    missed approximately 50 days of school that year. S.M. testified to frequent sexual
    abuse during this time, including being forced to take crack, marijuana, and
    sleeping pills, view pornography, and submit to the appellants sexual acts.

[6]

In June 2005, S.M. contacted the Childrens Aid
    Society from a shelter to report that she and her siblings were being neglected
     without proper accommodation or food. The CAS apprehended the children on
    June 22, 2005 and placed them in foster care with supervised visits from their
    mother and the appellant. S.M. did not report sexual abuse to the CAS at that
    time.

[7]

After living in foster care in Ontario, S.M.
    moved in 2007 to the United States to live with her father. She testified that
    she began selective and partial disclosure of the sexual abuse to her mother
    and friends while in foster care. She wrote at length of the sexual abuse in a
    book, as part of a grade 12 writing project. She subsequently reported the
    abuse to the police in Ottawa in 2012 through a written statement.

[8]

E.M. and A.W. each also reported incidents of
    physical abuse by the appellant.

[9]

The appellant was convicted of assault for an
    incident in which he choked A.W., and he was convicted of assault and assault
    with a weapon for hitting E.M. with sticks and a belt. With respect to S.M.,
    the appellant was convicted of sexual assault, sexual interference, invitation
    to sexual touching, administering a stupefying or overcoming drug, and assault.

[10]

The appellant appeals against his convictions on
    the following grounds:

(i)

the trial judge applied the wrong standard in
    assessing S.M.s evidence;

(ii)

the trial judge made improper use of the
    appellants criminal record in assessing the appellants credibility;

(iii)

the trial judge failed to consider a number of
    material inconsistencies in the Crowns case in assessing credibility;

(iv)

the trial judge applied different standards of
    scrutiny to Crown evidence than to defence evidence; and

(v)

the trial judge erred in finding the rule in
Browne
    v. Dunn
(1893), 6 R. 67 (H.L.), had been violated, and in drawing an
    adverse inference against the appellant.

A.

Analysis

(i)      Standard for
    assessing the credibility of S.M.

[11]

S.M. was a 24-year-old woman at the time of
    trial, testifying about events that occurred when she was approximately 10 to 14
    years old. The trial judge correctly noted that he was required to assess her credibility
    using the criteria applicable to adult witnesses. But in assessing her
    credibility, the trial judge was entitled to make allowances for errors attributable
    to the fact that she was recalling memories that were formed through the perceptions
    she had as a child:
R. v. W.(R.)
, [1992] 2 S.C.R. 122, at

p.
    134. Where such recollections appear faulty, and the perceptions relate to
    peripheral matters, these faults need not negatively impact the trial judges
    assessment of the witness.

[12]

As is the case with most allegations of sexual
    assault against children, the outcome largely turned on the trial judges
    assessment of the witnesses. The trial judge found S.M. to be credible. The trial
    judge did not, however, accept S.M.s evidence about the frequency of the
    sexual abuse  that she was sexually abused every day on the trip from British
    Columbia or that it was persistent, constant, and unrelenting thereafter. He
    accepted that it may have seemed to her as a child that sexual abuse was a
    daily occurrence, but that it was probably not daily. Ultimately, he
    accepted that the sexual assaults occurred in the way that S.M. described them,
    but perhaps with less frequency. He did not find this inaccuracy to be a
    marker of unreliability but more likely a marker of the memory of a child,
    and he observed that she recalled without hesitation in a chronological
    fashion the events that occurred.

[13]

The appellant argues that the trial judge erred
    in finding the frequency of alleged assaults to be a peripheral matter, and in
    not attributing more weight to S.M.s exaggeration in assessing her credibility.
    We do not agree. Trial judges are entitled to significant deference in assessing
    the credibility of witnesses:
R. v. Gagnon
, 2006 SCC 17, [2006] 1
    S.C.R. 621, at para. 20;
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3,
    at paras. 48-49. S.M.s evidence was that the appellant was prolific in his
    abuse of her. The frequency with which the assaults were alleged to have
    happened was by no means a trivial matter, but in the context of historical
    offences said to have occurred repeatedly over a period of several years, we
    cannot say that the trial judge erred in placing the weight he did on the
    complainants characterization of the frequency of the abuse.

(ii)     Use of the
    appellants criminal record

[14]

The trial judge noted the appellants lengthy
    criminal record, and found that the serious nature of some of those offences, not
    only go to the defendants credibility, but also to the violence of many of his
    offences. The appellant argues that the trial judge thereby wrongly used his
    criminal record for the prohibited purpose of reasoning that he likely
    committed the offences because his record reflected a propensity to commit
    violent offences.

[15]

We do not agree. The trial judge did not reason
    that because the appellant had been convicted of violent offences he was for
    that reason a violent person and was therefore more likely to have committed
    the offences.

[16]

The trial judge rejected the appellants
    evidence. He gave many reasons for doing so. Among these, the most important were
    the contradictory and evasive nature of much of his testimony, his refusal to
    concede clear errors in his testimony, his inability to remember past events
    with clarity, and what the trial judge perceived to be a lack of candour about having
    taken an illicit substance during the lunch break while he was testifying.

[17]

The appellants criminal record was an
    appropriate matter for the trial judge to consider in assessing credibility. The
    passage to which the appellant objects is a single half-sentence at the very
    end of a lengthy paragraph in which the trial judge assesses the appellants
    credibility. It appears to be almost a footnote or afterthought and is not
    integrated into the trial judges chain of reasoning.

[18]

Furthermore, as the Crown argues, the appellant
    made his violent history central to his defence. In cross-examination of the
    Crown witnesses, defence counsel repeatedly raised the issue of violence in the
    family home in order to highlight situations in which E.M. and S.M. spoke to
    police officers and CAS caseworkers but did not disclose the allegations of
    abuse. Moreover, the defence advanced the theory that S.M. blamed the appellant
    for bringing violence, drug abuse, and chaos into her family, and she therefore
    fabricated these allegations against him as retribution.

[19]

The trial judges comment about the appellants
    history of violence was not needed for his analysis and did not contribute to
    it. Nevertheless, it did not constitute reversible error.

(iii)    Material
    inconsistencies

[20]

The appellant argues that there are material inconsistencies
    in the evidence that the trial judge was obliged to resolve but did not. We do
    not agree.

[21]

Many of the inconsistencies that the appellant
    identifies are more apparent than real: accounts that are in some respects different,
    but not inconsistent. Some genuine inconsistencies that the appellant
    identifies relate to peripheral, non-material matters. A trial judge is
    entitled to deference in determining the significance to place on any
    inconsistencies in the evidence, particularly with respect to how those
    inconsistencies bear on the assessment of the credibility of witnesses.

[22]

The appellant places particular emphasis on inconsistencies
    related to S.M.s disclosure of the sexual abuse to her mother. On A.W.s
    account, in the telephone conversation where S.M. first disclosed that the
    appellant had sexually abused her, she only disclosed sexual touching. When A.W.
    pressed S.M. for more details by asking did he do more than that?, A.W.s
    evidence was that S.M said no but it sounded like she didnt wanna tell me
    more than what she knows.

[23]

S.M.s evidence was different:

Q.
         [Y]ou tell [A.W.] that [the appellant] used to touch you, right?

A.      Yeah, and more.

Q.      Well how much detail did you get into?

A.      Not too much, but I just stated the
    facts.

Q.
         But not detail, just that he raped and molested you for years, right?

A.      Yeah.

[24]

The inconsistency is that S.M. agreed on
    cross-examination to the proposition that she told A.W. about having been
    repeatedly raped as well as molested, whereas in A.W.s account, she
    specifically asked S.M. if the appellant had done anything more than fondle
    her, and S.M. had said no.

[25]

The trial judge clearly preferred the evidence
    of S.M. to A.W. He gave reasons for why he found A.W.s evidence overall to
    not be particularly impressive: at para. 89. In characterizing her evidence
    in this way, the trial judge made reference to her heavy drug use during the
    time of the sexual abuse, which he found impacted her ability to observe events
    and accurately remember them. The appellant objects that the trial judge ought
    not to have discounted her testimony about the details of the conversation of S.M.s
    disclosure on the basis of her historical drug impairment, as by that time she
    had been sober for many years.

[26]

But the trial judge did not reject all of A.W.s
    evidence, nor did he place undue weight on her historical drug use. His other
    basis for viewing her evidence with skepticism was her defensiveness at trial,
    in response to the suggestion that she had been, and continued to be, a poor
    mother. On A.W.s account, she interrogated S.M., seeking to pull the truth of
    what the appellant did, while S.M. thwarted her efforts. On S.M.s account, A.W.
    did not, and was not receptive to what she was told. The trial judge was
    entitled to doubt A.W.s credibility on matters that tended to put her
    parenting in a bad light.

[27]

The appellant has not made out the claim that
    the trial judge did not consider material evidence when making credibility
    assessments.

(iv)    Uneven scrutiny

[28]

A related ground of appeal is that the trial
    judge held the appellants evidence to a more rigorous standard than that of
    S.M. This ground of appeal is framed largely as a repetition of the arguments
    already rejected about the trial judges failure to engage with material
    inconsistencies in the evidence, and his preference of S.M.s evidence over the
    appellants. For the reasons given above, the argument is rejected.

[29]

Additionally, the trial judge gave lengthy reasons
    why he disbelieved the appellants evidence. His evidence was internally
    inconsistent and contradictory. He was a heavy crack cocaine user at the
    relevant time, which affected his memory. He was stubborn and evasive. He
    appeared intoxicated while giving evidence, which he attempted to explain away as
    the effect of taking prescription medication over the lunch break while in
    custody, an explanation that was contradicted by police officials who had care
    of him at the time.

[30]

The trial judge similarly gave lengthy reasons
    why he believed S.M.s account, including explaining why the evidence that he
    rejected did not impact on his finding that she was a credible witness. He drew
    on evidence of the appellant and A.W. that corroborated her account in several
    respects, particularly with respect to their evidence about an incident of inflammation
    of S.M.s vagina, which the trial judge accepted as corroborative of S.M.s
    account of sexual abuse by the appellant.

[31]

The trial judge did not err in the manner in
    which he assessed the evidence of the witnesses.

(v)
Browne
    v. Dunn

[32]

There is no merit to the appellants argument
    that the trial judge improperly applied the rule in
Browne v. Dunn
to
    the detriment of the appellant. The remarks the trial judge made about
Browne
    v. Dunn
during the trial were provisional and equivocal, and made no
    appearance in his reasons for judgment. As canvassed above, the trial judge had
    ample reason to disbelieve the evidence of the appellant, and there is no
    indication in his reasons that he drew an adverse inference on the basis of a
    violation of the rule in
Browne v. Dunn
. Even if he had drawn an
    adverse inference, it would have been entirely superfluous for him to have done
    so.

B.

Disposition

[33]

The appeal is dismissed.

Doherty
    J.A.

David
    Watt J.A.

B.W.
    Miller J.A.


