



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. S.P., 2021 ONCA 233

DATE: 20210426

DOCKET: C65235

Watt, Benotto and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.P.

Appellant

Margaret Bojanowska
, for the appellant

Kevin Rawluk
,
    for the respondent

Heard: March 2, 2021 by
    video conference

On appeal from the conviction entered on
    March 14, 2016 and from the sentence imposed on June 30, 2016 by Justice Bernd
    Zabel of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual offences in relation to his
    daughters. The events took place approximately 40 years ago when they were
    between the ages of 6 and 14. He appeals the convictions on the basis that the
    trial judge erred in his credibility analysis and that trial counsel provided
    ineffective assistance. Although he appealed his sentence, he provided no
    written or oral submissions, and the respondent submits that the sentence
    appeal should be dismissed as abandoned.

BACKGROUND

[2]

At the time of trial, the appellant was 78 years old, his daughter D.Z.
    was 48, and his daughter L.R. was 50. Both complainants testified about
    repeated instances of sexual abuse including intercourse that occurred between
    1972 and 1980.

[3]

D.Z. described the sexual abuse beginning when she was 6. The family
    moved several times and she testified about abuse at each successive home. In
    1978 when she was 12, D.Z. was visiting her aunt J.B. D.Z. asked J.B. where
    babies come from. D.Z. said, My father does that to me. J.B. confronted D.Z.s
    parents. D.Z. was taken for a medical examination which revealed that she was
    pregnant. She then went to a New York medical clinic with her father and
    underwent an abortion.

[4]

L.R. testified that she was sexually abused by the appellant numerous
    times. The first incident was New Years Eve, the day before her thirteenth
    birthday. The incidents continued throughout the year and ended when she was
    14.

[5]

D.Z. and L.R. both testified that the appellant sometimes arranged for
    them to be brought home from school early; that the acts often took place in
    the basement; that they were told to rub his penis; and that they were told to
    remove their clothes and lie on a bed while he engaged in intercourse with them.
    They had feelings of wetness afterwards and were instructed not to tell anyone.

[6]

L.R. disclosed the abuse at a family meeting in 2011 when she and D.Z.
    were in their forties.

[7]

The appellant testified at age 78. He denied that allegations and said
    that the accusations were made in response to a financial conflict that he was
    engaged in with his sons Z.P. and E.P. As a result of the conflict, E.P. was
    criminally charged in Europe. The appellant planned to fly to a country in
    Europe to give evidence on behalf of E.P. and against Z.P. He was arrested on
    these charges before his scheduled flight. He said that Z.P. convinced his
    sisters to make the accusations to stop him from going to Europe to testify.

[8]

D.Z. and L.R. denied colluding with each other or with their brother.

[9]

Z.P. denied having financial quarrels with his father and said he had no
    reason to stop the appellant from going to Europe and no reason to have his
    sisters falsely complain to the police about his father. The evidence was that
    the appellant could have testified from the countrys consulate in Canada.

JUDGMENT BELOW

[10]

The
    trial judge disbelieved the appellant and concluded that his evidence did not
    raise a reasonable doubt. He did not believe the appellants denial of the
    detailed allegations. Rather he found his evidence to be contrived, lacking in
    sincerity and evasive. The trial judge concluded that the appellants
    conspiracy theory was devoid of merit and contrary to the evidence.

[11]

He
    found both complainants credible and their evidence compelling. Based on the
    similarities between the youth of the two complainants, the continued nature of
    the offences and the similar evidence in relation to the abuse, the trial judge
    granted the Crowns similar fact application.

ISSUES RAISED BY THE APPELLANT

[12]

The
    appellant submits that the trial judge erred in the assessment of credibility
    and that he received ineffective assistance of counsel. He seeks to rely on
    fresh evidence concerning a financial motive for the allegations by the
    complainants.

ANALYSIS

Credibility

[13]

The
    appellant submits that the trial judge did not resolve material inconsistencies
    in the complainants evidence, erroneously relied on the appellants sweeping
    denial when considering the appellants credibility and was uneven in his
    scrutiny of the Crown and defence evidence.

Credibility assessment of the complainants

[14]

The
    appellant alleges that there were inconsistencies that the trial judge failed
    to resolve between the complainants evidence and that of other witnesses. In
    an attempt to demonstrate this, the appellant reviewed individual statements by
    the complainants which he submits were inconsistent with that of other
    witnesses. For example, L.R. testified that she was called home from school
    early before instances of abuse. Her brother did not recall her coming home
    early from school. Likewise, D.Z. testified that she did not know she was
    pregnant when she told her aunt what her father did, but her aunt testified
    that D.Z. said she was pregnant by her father.

[15]

We
    do not see these, and the other examples referred to by the appellant, as
    inconsistencies. The trial judge believed L.R.s testimony that she was called
    home early. That Z.P. did not recall is neither a material fact nor an
    inconsistency that needed to be resolved.

[16]

Similarly,
    D.Z.s conversation with her aunt creates no inconsistency but rather is explainable
    by the context. It is understandable that her aunt understood D.Z. was saying
    she was pregnant when they were discussing where babies come from. In any
    event, this was but a peripheral matter, not a material fact.

[17]

A
    trial judge is not required to explicitly deal with all the evidence. The
    reasons articulate the basis for the conviction and the examples relied on by
    the appellant were of limited, if any importance to his conclusion: see
R. v. T.C
., 2020 ONCA 469, at para. 25;
R. v. A.A.G.
,
2020 ONCA 356, at
    paras. 20-21.

Credibility assessment of the appellant

[18]

The
    appellant submits that the trial judge rejected his evidence because he denied
    the allegations. He points to the following statement by the trial judge:

[The appellants] sweeping denial
    of the detailed allegation of sexual assault against him is not worthy of
    belief; and I find it to be contrived and lacking in any ring of sincerity.

[19]

The
    appellant submits that this is unfair since all he could say was that the
    events did not take place. An accused is entitled to deny the allegations.

[20]

The
    appellant relies primarily on the term sweeping denial which he takes out of
    its context. The trial judge based his conclusion with respect to the
    appellants credibility not on the denial, but rather his disbelief of the
    conspiracy theory that the allegations were manufactured by the complainants on
    the instructions of their brother to prevent him from testifying in Europe. In
    the paragraphs that follow the trial judge explained:

The basis of his denial is a conspiracy theory that these
    serious allegations were manufactured by the complainants on the instructions
    of the conspiracys mastermind, their brother [Z.P.], to have him arrested so
    that he would not testify in [Europe] in civil lawsuits.

I find that this conspiracy theory
    is a product of the [appellants] desperate attempt to deflect responsibility
    and devoid of any merit or basis; and in fact, is contrary to the evidence
    presented.

[21]

It
    was open to the trial judge to accept the evidence of the complainants and Z.P.
    that they did not conspire to stop him from going to Europe to testify.

[22]

The
    appellant alleges that the trial judge misapprehended the nature of the dispute
    between the brothers. He argues that this was a misapprehension of a key aspect
    of the evidence. However, it is of no moment for the nature of the dispute was
    not material to his conclusion.

[23]

Ultimately,
    the trial judge disbelieved the appellant and believed the complainants. As in
R. v. Vuradin
,

2013 SCC 38, [2013]
    2 S.C.R. 639, at para. 28:

Here, the appellant
    was not believed. The Crowns case was considered with the appellants denial
    in mind, and the trial judge concluded, as he was entitled to do, that his
    denial did not raise a reasonable doubt.

Uneven scrutiny

[24]

The appellant submits that the trial judge accepted Crown witness
    hearsay while rejecting defence witness testimony that contained hearsay.  In
    particular, he points to the evidence of Z.P and R.P. that was accepted and the
    evidence of E.P. that was rejected.

[25]

There are significant differences here.  Z.P. testified that his mother
    called him to the basement and, while extremely upset, told him about D.Z.s
    abortion and that the father had raped her. R.P., another aunt of D.Z., was
    present at the family meeting when L.R. disclosed the abuse.  R.P. was called
    as a reply witness in response to the allegation of recent fabrication. Her
    testimony was not used for a hearsay purpose.  In any event, the trial judge
    did not rely on the testimony for proof of the abuse.  For that, he relied on
    Z.P. and L.R.

[26]

E.P.s evidence, on the other hand, had nothing to do with the
    allegations. Rather, he recounted general family meetings and his financial
    dispute with his brother.  The trial judge found this evidence irrelevant.

[27]

We conclude that the appellants submission that the trial judge
    applied uneven scrutiny to the Crown and defence evidence is a veiled
    invitation to reassess the trial judges credibility assessment:
R. v. Aird,
2013 ONCA 447, at para. 39. He
    has pointed to nothing in the reasons that make it clear that the trial judge
    applied different standards in assessing the evidence of the Crown and the
    defence:
Aird
, at para.
    39.

[28]

The
    appellants overall submissions on credibility veer toward the assertion of
    insufficient reasons. We conclude that the reasons allow for meaningful
    appellate review as they provide the appellant with an explanation for why the
    trial judge decided as he did. As the court stated in
Vuradin
,
    at para. 19:

The trial judge found
    the complainants evidence compelling, the problems in her evidence
    inconsequential, and the appellants concoction theories speculative. The
    reasons reveal that the trial judge accepted the complainants evidence where
    it conflicted with the appellants evidence. No further explanation for
    rejecting the appellants evidence was required.

Fresh evidence

[29]

The appellant seeks to rely on fresh evidence to support his claim of
    ineffective assistance and to raise the issue of his familys financial motive
    for the accusation.

[30]

The
    appellant submits that trial counsel conducted ineffective cross-examinations
    and failed to raise issues that would assist him. He lists a myriad of
    questions that could have been asked including: questions to J.B. about the
    ongoing relationship with the family; failure to confront J.B. about her police
    statement that D.Z. told her of threats the appellant made to D.Z.; and
    questions to L.R. about her alleged threats to E.P.s in-laws in Europe.

[31]

There
    was no issue at trial that the appellant and J.B. remained in contact. The
    issues about J.B.s conversation with D.Z. about the threats the appellant made
    and L.R.s trip to Europe are immaterial.

[32]

The
    general complaint about counsel was addressed in trial counsels affidavit:

My trial strategy
    was to challenge the reliability of the complainants evidence based on the
    inconsistencies and gaps in the details of their narratives and their
    credibility given the close timing of their complaints to police with the civil
    proceedings involving their families in [Europe]. I cross-examined all of the
    Crown witnesses as thoroughly as I could. In fact, I was met with repeated
    objections from the Crown and interjections from the trial judge that my
    cross-examinations were too wide-ranging.

[33]

Indeed, the trial judge referred to his cross-examination of D.Z. as
    withering. With respect to L.R., the trial judge said, 
she withstood
    intensive and extensive cross-examination over some 122 pages of trial
    transcript, as compared to 52 pages of examination-in-chief without
    contradiction or retraction in her testimony.

[34]

We
    see no miscarriage of justice arising from the allegation that trial counsel
    was ineffective.

[35]

The
    proposed fresh evidence also relates to a civil suit brought against the
    appellant for damages for sexual abuse. There is nothing nefarious about a
    civil suit for damages brought after conviction. Offenders convicted of sexual
    assault are liable in damages to their victims:
Victims
    Bill of Rights, 1995
, S.O. 1995, c. 6.

[36]

Finally,
    the proposed fresh evidence includes documents purporting to show that
    ownership of the matrimonial home was improperly transferred to the appellants
    ex-wife. There is also evidence of a civil suit brought by the appellants
    ex-wife against him and their bank.

[37]

This
    proposed evidence does not meet the requirements for admission in
Palmer v. The Queen
,
[1980] 1
    S.C.R. 759: the evidence will generally not be admitted if by due diligence it
    could have been adduced at trial; the evidence must be relevant in the sense
    that it bears upon a decisive or potentially decisive issue in the trial; the
    evidence must be credible in the sense that it is reasonably capable of belief;
    and  it must be such that if believed, it could reasonably, when taken with the
    other evidence at trial be expected to have affected that result.

[38]

The
    evidence related to the appellants ex-wife does not bear upon a potentially
    decisive issue in the trial nor could it have been expected to have affected
    the result. The appellants ex-wife was not a witness at trial. The appellants
    defence at trial was that his son, Z.P., colluded with the complainants to make
    false claims against the appellant. The participation of his ex-wife in the
    alleged collusion was not a central component of his defence. In any event, the
    trial judge concluded that the appellants collusion theory did not even stand
    up to the most superficial scrutiny. The proposed fresh evidence does nothing
    to attack that conclusion and could not be expected to have affected the result.

[39]

We
    have considered the fresh evidence with respect to the ineffective assistance
    allegation and conclude that there was no miscarriage of justice. The balance
    of the fresh evidence is not admitted.

Disposition

[40]

The
    appeal as to conviction is dismissed.

[41]

No
    submissions having been made on the sentence appeal, it is dismissed as
    abandoned.

David
    Watt J.A.

M.L.
    Benotto J.A.

M.
    Jamal J.A.


