



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. D.E.S., 2018 ONCA 1046

DATE: 20181218

DOCKET: C59607

Pepall, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.E.S.

Appellant

Sherif M. Foda and Kaleigh Davidson, for the appellant

Jacob Sone, for the respondent

Heard: November 21, 2018

On appeal from the conviction entered on July 15, 2013 and
    the sentence imposed on December 6, 2013 by Justice Rommel Masse of the Ontario
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant appeals from his convictions for assault, assault with a
    weapon, sexual interference, three counts of sexual assault, uttering a threat,
    two counts of failing to comply with a recognisance and failure to comply with
    probation. He also seeks leave to appeal his sentence of 10 years
    incarceration less 34 months of pre-trial custody.

Conviction Appeal

[2]

The charges stem from allegations made by three of the appellants
    children, all of whom have cognitive deficits. The appellant was convicted of
    all charges with the exception of one count of assault causing bodily harm.

(i)

Material Inconsistencies and Adequacy of Reasons

[3]

The appellant first submits that the trial judge failed to resolve
    material inconsistencies in the witnesses evidence and failed to provide
    adequate reasons. We would not give effect to these grounds of appeal.

[4]

At its heart, this was a credibility case.

[5]

The trial judge commenced his analysis by noting that credibility was of
    primary importance and instructed himself on
R. v. W. (D.),
[
1991] 1 S.C.R. 742. Regarding the
    childrens testimony, the trial judge drew guidance from the Supreme Courts
    decision in
R. v. B. (G.)
, [1990] 2 S.C.R. 57, noting that although
    the standard of the reasonable adult is not necessarily appropriate, he
    should not lower the standard of proof when assessing the credibility of
    children.

[6]

Having properly instructed himself, the trial judge turned to the
    allegations made against the appellant. He was alive to the issues relating to
    credibility and reliability. He specifically described shortcomings in the evidence
    of the children, including inconsistencies, inadmissible hearsay,
    exaggerations, incremental disclosure, the childrens limited intellectual
    abilities, their difficulty providing timeframes, and contradictions in the
    evidence. Having alerted himself to these difficulties, he nonetheless ultimately
    found their evidence to be credible and reliable as it related to the serious
    allegations they made against their father. It was clear from the totality of
    the evidence that the trial judge was satisfied beyond a reasonable doubt of
    the appellants guilt and it was for this reason that he convicted the
    appellant of all charges with the exception of that of assault causing bodily
    harm.

[7]

On the key issues, the trial judge accepted K.S.s evidence of the appellants
    sexual assault of her and her brothers. The appellants younger son, D.S.,
    corroborated his sisters evidence that she and the appellant would repeatedly be
    shut in the bedroom behind closed doors. He also stated that the appellant
    grabbed and pulled his penis and that of his older brother J.S.s penis as
    punishment. J.S. also stated that the appellant used to take his and D.S.s
    pants down and give their penises a hard tug.

[8]

All three of the children described beatings, threats by the appellant,
    and the factual circumstances that reflected the appellants failure to comply
    with his recognizance and his breach of probation.

[9]

The trial judge was not obliged to address every contradiction and
    inconsistency. As noted by Watt J.A. in
R. v. Wadforth
, 2009 ONCA 716,
    at paras. 65-67, the degree of detail required to explain findings of
    credibility will vary with the evidentiary record and trial dynamics.

[10]

The
    trial judge rejected the evidence of the appellant as lacking in credibility
    and that of the other defence witnesses. He observed, correctly, that the
    appellants story was in many respects inconsistent not only with the testimony
    of the children but also with that of his wife C.S. and the other defence
    witnesses. For example, his portrait of well-fed children was completely at
    odds with their undernourished and emaciated state when taken into foster care.

[11]

The
    trial judge also pointed to weaknesses in the other defence witnesses
    testimony. Among other things, he noted that C.S. claimed that she and the
    appellant never used physical force to discipline the children, though this was
    inconsistent with the appellants own admissions.

[12]

Although
    the trial judges reasons were not perfect, they need not be. It cannot reasonably
    be concluded that the trial judge forgave any inconsistencies in the childrens
    evidence due to their ages and limited intellect. Reading the record as a
    whole, we are satisfied that the trial judge seized the substance of the
    critical issues at trial and was alive to internal inconsistencies in the
    statements by the three children and the inconsistencies among their three
    recollections.

[13]

Nor were the reasons inadequate. An appellate court,
    proceeding with deference, must ask whether the reasons considered with the
    evidentiary record, the submissions of counsel, and the live issues at trial
    reveal the basis for the verdict:
Wadfort
h
, at para. 68;
R.
    v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 53;
R. v. Sheppard
,
    [2002] 1 S.C.R. 869, at para. 28. In our view, the trial judges reasons for
    decision, which were 72 pages in length, did so. They fulfilled their
    functional requirement. They clearly informed the appellant of the basis for
    the verdict and were not so deficient as to foreclose meaningful appellate
    review. See also
R. v. Dinardo
, [2008] 1 S.C.R. 788, 2008 SCC 24,
R.
    v. Vuradin
, 2013 SCC 38, [2013] 2 SCR 639; and
R v. R.E.M.

(ii)

Standard of Scrutiny

[14]

The
    appellant also submits that the trial judge erred in applying a higher standard
    of scrutiny to the defence witnesses than that applied to the Crown evidence.

[15]

This
    is a difficult argument to make, and we would not give effect to it.

[16]

The
    trial judge properly instructed himself on the Crowns burden and on how to approach
    the evidence of children. While he did state that the appellant and his wife C.S.
    were possibly the worst imaginable parents, this and other findings relating
    to their parenting abilities did not overtake his analysis or impair his
    understanding of the task before him. We are not persuaded that the appellant
    has established any reversible error in this regard. It is not evident that the
    trial judge applied different standards in assessing the Crown and defence
    witnesses as the appellant alleges  he acknowledged weaknesses in both defence
    and Crown witnesses, and addressed the credibility issues in a reasoned and
    even-handed fashion. We would not give effect to this ground of appeal.

Sentence Appeal

[17]

The
    appellant also seeks leave to appeal sentence. He submits that the trial judge
    erred in his calculation of credit for pre-sentence custody. The appellant
    abandoned his submission that the trial judge erred in attenuating the
    relevance of
Gladue
principles in his sentencing decision.

[18]

We
    agree with the appellants submission on credit for pre-sentence custody and
    the Crown concedes that the appellant is entitled to credit calculated at 1.5
    to 1, rather than at 1 to 1 as ordered by the trial judge. The trial judge did
    not have the benefit of this courts decision in
R. v. R. S.
, 2015
    ONCA 291, which was rendered after the appellant was sentenced. That case
    stands for the proposition that the retrospective application provisions in the
Truth in Sentencing Act
are of no force and effect. Accordingly, as
    the appellant was in custody for two years and 10 months, he is entitled to
    credit calculated at 1.5 to 1. This amounts to an additional 17 months credit on
    account of pre-sentence custody.

Disposition

[19]

For
    these reasons we dismiss the appeal, grant leave to appeal sentence, and allow
    the sentence appeal to reduce the appellants sentence by an additional 17
    months on account of credit for pre-sentence custody.

S.E.
    Pepall J.A.

David
    M. Paciocco J.A.

Harvison
    Young J.A.


