



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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.R., 2022 ONCA 33

DATE: 20220117

DOCKET: C64776

Tulloch, Pardu and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.R.

Appellant

A.R., acting in person

Breana Vandebeek, appearing as duty
    counsel

Avene Derwa, for the respondent

Heard: January 13, 2022 by
    video conference

On appeal
    from the conviction entered on August 1, 2017 by Justice Rommel G. Masse of the
    Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant A.R. appeals from conviction on 30 counts of offences,
    involving,
inter alia
, serious sexual offences
    upon her oldest daughter and physical abuse of her five children, extending
    over a period of seven years. She was also convicted of cruelty to family pets,
    acts that were part of the ongoing terror inflicted on the children. The
    children have been left with profound physical and psychological scars. (Since
    the trial, the appellant prefers to self-identify as female.)

[2]

Duty counsel advances two arguments to suggest that the convictions
    should be overturned.

[3]

Firstly, counsel submits that the trial judge erred at paragraph 110 of
    his reasons when he indicated: The outcome of this matter depends on the
    courts assessment of the credibility of key witnesses. The credibility of the
    five children who testified and that of the accused needs to be assessed. An assessment
    of credibility involves evaluation not only of the honesty of a particular
    witness but also the reliability of the evidence of that witness.
One should not rely on the testimony of a
    dishonest witness in the absence of some independent corroborative evidence.

However, even honest witnesses can be mistaken. [emphasis
    added]

[4]

Counsel argues that the trial judge misapplied
R.
    v. W.(D.)
, [1991] 1
    S.C.R. 742,
by requiring that the appellants evidence be
    corroborated before it could raise a reasonable doubt.

[5]

We would not interpret the reasons in this fashion. The trial judge
    correctly cited
R. v. W.(D.)
in the same
    paragraph. There is no hint anywhere in the lengthy and detailed reasons that
    he considered that the accuseds evidence had to be corroborated before it
    could raise a reasonable doubt. In making the impugned reference, it appears
    that the trial judge was considering the evidence led by the Crown.

[6]

Secondly, duty counsel submits that the trial judge fell into error by
    conflating a proven absence of motive with absence of evidence of motive
    when he indicated at para. 127 of his reasons that [t]he children have no
    motive whatsoever to bear false witness against the accused and cited a
    decision of this court indicating [a]bsence of any motive to fabricate an
    allegation is a proper matter for consideration in the course of the
    fact-finding process:
R. v. C.(G.)
, [2006]
    O.J. 2245, at para. 27 (Ont. C.A.).

[7]

We are not satisfied that the trial judge placed any onus on the
    appellant to explain why the children would make the allegations against her.
    Nor did the trial judge find that the Crown had proven there was no motive to
    fabricate. Instead, the trial judge carefully rejected the theory that the
    children colluded to give false evidence against their father and treated the
    absence of evidence of a motive to fabricate as one factor among many in his
    assessment of the credibility of the childrens evidence, to which no objection
    can be made:
R. v. Ignacio
, 2021 ONCA 69, 400
    C.C.C. (3d) 343, at para. 3.

[8]

The appeal from conviction is accordingly dismissed. The appellant is
    represented by counsel on the sentence appeal which is proceeding separately.

M.
    Tulloch J.A.

G. Pardu
    J.A.

A. Harvison Young
    J.A.


