



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Bulic, 2020 ONCA 845

DATE: 20201231

DOCKET: C66246

van Rensburg, Benotto and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Damir Bulic

Appellant

Janani Shanmuganathan and Justin Nasseri, for the
    appellant

Rebecca Schwartz, for the respondent

Heard: December 4, 2020 by video conference

On appeal from the
    conviction entered by Justice R. Dan Cornell of the Superior Court of Justice on
    July 16, 2018, and from the sentence imposed on May 15, 2019, with reasons
    reported at 2019 ONSC 220.

REASONS FOR
    DECISION

[1]

The
    appellant was the complainants grade seven French teacher in 2010-2011. The complainant
    alleged that at the end of grade seven, when he was 12 years old, the appellant
    engaged in indecent acts in his presence including masturbation and simulated
    sex with various objects and inviting the complainant to engage in a sex act.
When he was 19, t
he complainant disclosed these events to his girlfriend,
    his mother and the police. The trial judge convicted the appellant of four
    counts of committing an indecent act and one count of sexual invitation to a
    person under 16 years of age and sentenced him to two years less a day. The
    appellant appeals the convictions and sentence.

[2]

For
    the reasons that follow, we dismiss the conviction and sentence appeal.

The conviction

[3]

The appellant raises three grounds
    of appeal:


i.

that the trial judge failed to
    properly scrutinize the complainants evidence;


ii.

that the trial judge did not
    address the complainants motive to fabricate; and


iii.

that the trial judge misapplied
    the burden of proof.

[4]

The
    appellant submits that the complainants evidence was incredible and unreliable
    and that the trial judge did not properly address it. The complainant had lied
    repeatedly to his mother and the police. The appellant submits that the
    complainant also lied while in court.
For example: when the complainant was in grade nine, the complainant lied
    to the police when he said there had been no sexual contact between him and the
    appellant; the complainants evidence on a vehicle accident in June 2011
    changed several times regarding who had been driving and what the complainant
    and the appellant had been doing at the time of the accident; and there were inconsistencies
    between the complainants testimony and the testimony of the complainants
    friend on the contents of a video.

[5]

The trial judge accepted the
    complainants explanation that he had lied to his mother and to the police
    because he was embarrassed by the appellants conduct and was afraid that he would
    be in trouble. Also, by the time the complainant testified at trial, more than
    six years had passed. The trial judge concluded that even though some details
    of his evidence changed, the complainants evidence about the essential
    elements of the offences did not. He found that the variations in the
    complainants evidence did not detract from his credibility or reliability.

[6]

The trial judges credibility
    findings are entitled to deference:
R. v. Dinardo
, 2008 SCC 24, [2008]
    1 S.C.R. 788, at para. 26. He was well aware of the inconsistencies, addressed
    them and accepted the complainants evidence. We see no reason to interfere.

[7]

The appellant further submits that
    the
trial judge failed to assess the
    complainants motive to fabricate in his reasons. The appellant submits that
    the complainants mother disliked the appellant,
and either the
    complainant was making the allegations to improve his relationship with his
    mother, or the mother encouraged false statements to the police. The appellant
    submits that it was an error for the trial judge not to address this theory in
    his reasons.

[8]

The trial judge did not fail to
    consider the potential motive to fabricate. When defence counsel raised the
    theory in closing submissions, the trial judge questioned the relevance of the
    mothers credibility. The trial judge agreed that that the mother had
    previously harboured animus toward the appellant but noted that there was no
    evidence that it continued. After reviewing the evidence with defence counsel, the
    trial judge concluded that the complainants mother was not coaching the
    complainant about what to tell the police or disclose, she was instead urging
    the complainant to tell the truth about what had happened.

[9]

The trial judge clearly found no evidence
    to support a motive to fabricate. This conclusion was open to him on the
    evidence and we do not accept that it was an error in principle not to address
    the issue in his reasons.

[10]

Finally,
    the appellant submits that
the
trial judge misapplied the burden of proof
    by essentially requiring the appellant to dismantle the essential elements of
    the complainants allegations. He submits that
the trial judge
    accepted the complainants evidence uncritically. We do not agree. As we have
    set out above, the trial judge was aware of the issues the appellant now
    raises. He nonetheless accepted the evidence of the complainant. It was open to
    him to do so.

The sentence

[11]

The
    appellant appeals his sentence, alleging that the trial judge determined the
    sentence without reference to the appellants mental health.

[12]

The Crown sought a three-year
    sentence, while the appellant sought a sentence of nine months. The aggravating
    factors included a breach of trust, and that there were multiple incidents and
    extensive grooming behaviour. The mitigating factors were that the appellant
    did not have a criminal record, that he had support from family and friends,
    and his history of employment as a teacher since 1999, which was has ended
    because of the convictions. The victim impact statement from the complainants mother
    indicated that these offences had serious physical, emotional, and financial
    impacts on the complainant and his family. The trial judge also commented on the
    position of trust that the appellant was in as the complainants teacher and
    made a note of case law that emphasized the message that must be sent to
    offenders in that position.

[13]

The trial judge did address the
    appellants mental health issues. He concluded that the issues appeared to be a
    result of his criminal conduct and not a result of a pre-existing condition. Further,
    medical conditions cannot generally be used to avoid what is otherwise a fit
    and proper sentence:
R v. Heron,
2017 ONCA 441, at para. 25.

[14]

The trial judge sentenced the
    appellant to two years less a day imprisonment and imposed a three-year period
    of probation and various ancillary orders, including: a weapons prohibition,
    DNA order, sex offender registration, non-communication order, and a
    prohibition on being in certain locations or seeking employment where he would
    be in a position or trust or authority toward persons under 16 years of age.

[15]

The trial judge imposed a sentence
    between the length proposed by defence and Crown counsel. It was a fit
    sentence, and we see no error in principle that would lead us to interfere.

[16]

The conviction appeal is
    dismissed. Leave to appeal sentence is allowed but the sentence appeal is
    dismissed.

K. van Rensburg J.A.

M.L. Benotto J.A.

J.A. Thorburn J.A.


