



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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

6.

(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

7.

(a) as soon as feasible, inform the victim of their right to make an
    application for the order; and

8.

(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.C., 2016 ONCA 83

DATE: 20160128

DOCKET: C57701

Laskin, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.C.

Appellant

Mark Halfyard, for the appellant

Kevin Rawluk, for the respondent

Heard: August 25, 2015

On appeal from the conviction entered on July 3, 2013 by
    Justice John R. McIsaac of the Superior Court of Justice, sitting without a
    jury.

Laskin J.A.:

A.

Introduction

[1]

The appellant S.C. was convicted of sexual offences against his
    step-daughter and sentenced to seven years in prison.  He appeals only his
    convictions.

[2]

His step-daughter, the complainant, testified that the appellant engaged
    in a relentless campaign of sexual abuse of her for 13 years. The abuse began when
    she was four and ended when she left home at age 17, four months before her
    high school graduation. She testified that the sexual abuse progressed from
    sexual touching to oral sex and eventually to attempted vaginal intercourse.
    She also testified that when she was a child the appellant photographed her
    breasts and vagina.

[3]

The appellant testified and denied the abuse. His theory was that the
    complainant fabricated her allegations to ensure she would not be forced to
    return to live with him after she left home.

[4]

The case was tried over nine days and turned entirely on the credibility
    of the complainants allegations and the appellants denial. The trial judge
    gave lengthy oral reasons. He accepted the complainants evidence, which he
    found balanced and compelling. He also found her evidence had some support
    from the evidence of the appellants former partner and their son. And the
    trial judge rejected the appellants evidence, which he found devoid of any
    credibility. He also rejected the evidence of the appellants wife and their
    two youngest children, who had testified for the defence. The trial judge
    convicted the appellant of sexual interference, sexual exploitation and making
    child pornography.

[5]

The appellant appeals his convictions on two grounds, both related to
    aspects of the trial judges credibility findings. First he submits that the
    trial judge erred by rejecting his evidence and that of his wife based on speculation
    about their past involvement in a subsidized housing scam. Second, he submits
    that the trial judge erred by rejecting the evidence of his two youngest
    children because of their relationship to him; yet, in contrast, the trial
    judge described the Crown witnesses as independent and impartial, even though
    they were aligned with the complainant.

[6]

The appellant acknowledges that the trial judge gave other reasons for
    his credibility findings, which he does not challenge. But he contends that the
    two errors made by the trial judge taint his overall credibility findings. He
    asks for a new trial.

B.

Background

(1)

The family relationships and living
    arrangements

[7]

When the case was tried in 2012, the appellant was 55 years old. He had
    a previous relationship with B.S., which ended in 1998. However, they had one
    son from that relationship, I.C., born in 1991. I.C. lived mainly with his
    mother, but on occasion with his father. By the time of trial, he and the
    appellant were estranged. Both B.S. and I.C. testified for the Crown.

[8]

The appellant met the complainants mother D.C. in 1994. They became
    romantically involved and eventually married. The complainant was born in 1991
    from her mothers previous relationship. She lived with her mother and
    eventually with the appellant as well.

[9]

The appellant and D.C. had two children together, a son N.C., born in
    1996, and a daughter H.C, born in 1998. D.C., and N.C. and H.C. (who were then
    teenagers) testified for the defence.

[10]

The
    appellant and D.C. were not wealthy. Their main financial support came from the
    Ontario Disability Support Program. Even though they had two children together,
    from the time they met until 2001, they maintained separate residences  D.C.
    lived in a co-op where the appellant would occasionally sleep over, while the
    appellant maintained his own residence. In 2001, however, the appellant
    inherited enough money from his father to buy a house. From then on, the family
    lived together. Their maintenance of separate residences led to one of the
    trial judges findings challenged on appeal.

[11]

The
    evidence at trial showed the appellant to be a strong-minded, obstreperous and
    somewhat eccentric individual, with unorthodox religious beliefs. He testified
    that he qualified for disability support payments based on the opinion of a
    psychiatrist from the Centre for Addiction and Mental Health that the appellant
    suffered from a disability that gave him religious delusions and made him
    unemployable.

[12]

The
    appellants strong and unorthodox views led to conflicts with other members of
    the family who disagreed with his opinions. The complainant clashed with the
    appellant over pre-marital sex, which he and his wife were opposed to on
    religious grounds, over her attendance at parties, and eventually over her
    boyfriend.

[13]

The
    complainant left home to live with her boyfriends family after the appellant
    and her mother tried to prevent her from seeing him for a period of time.
    Shortly after she left home, the complainant told the police the appellant was
    sexually abusing her. At trial she acknowledged that she believed, mistakenly,
    that the police could force her to return home at her parents request because
    she was under 18. This mistaken belief formed the basis for the defence theory
    that the complainant made up her allegations to ensure she would not have to
    return home.

(2)

The complainants evidence of sexual
    abuse

[14]

The
    complainant testified that soon after the appellant and her mother became a
    couple, when she was between four and six years old, he showed her pornographic
    magazines.

[15]

When
    the complainant was between six and eight years old, the appellant came into
    her bedroom at night and warned her there were bad men, who might kidnap her
    and do sexual things with her. He said she could do other things to satisfy
    them and taught her how to give him a hand job.

[16]

When
    the complainant was nine, the appellant began performing oral sex on her. He
    continued to do so until she left home. He said he needed nectar to stay
    young, and he wanted to get her honey. When she was 11 years old the
    appellant showed her a video of a young girl performing fellatio, and he asked
    the complainant to do the same for him. At times he would also massage her
    breasts with Vitamin E, claiming that he was concerned about stretch marks.

[17]

When
    the complainant was in grade eight, she spent time in her room with a boy in
    her class. The appellant asked her what had taken place and she admitted to
    engaging in sexual activity with the boy. The appellant then insisted he had to
    physically examine her genitals. He made the complainant lie on her back. He
    then used bright lights to illuminate her genital area, stimulated the area
    with a warm, wet cloth, and took pictures with a digital camera.

[18]

Though
    the appellant denied all of the complainants other allegations of sexual
    abuse, he did admit to this physical examination of the complainants genitals.
    He claimed he wanted to see if there was sperm lapping about. He also
    admitted that he did not tell his wife about this examination until after his
    arrest, years later. Although the appellant admitted to physically examining
    the complainant just this one time, she testified that from then on he examined
    her regularly, and more frequently when she was dating a boy.

[19]

According
    to the complainant, the appellant was a night-hawk and he had a bedroom
    separate from the rest of the family. Almost every night the appellant came
    into the complainants bedroom and slept with her in her single bed. He attempted
    sexual acts and she frequently argued with him. The appellant sometimes pinned
    her to the bed or complained about her seeming lack of enthusiasm for their
    sexual activity. The complainant also testified that several times her mother
    walked in on them while they were engaged in sexual activity under the bed
    covers and asked suspiciously what was going on. Her siblings often walked in
    on them too.

[20]

The
    complainant testified that when she was 17, the appellant first attempted
    intercourse with her. Throughout her life he had stressed the importance of
    protecting her virginity. But when she told him she might have sex with her
    boyfriend, the appellant insisted that if she were to lose her virginity, it
    should be with him. He produced a condom with the word love written on it.
    When he first tried to have intercourse, he could not penetrate her because he
    was not fully erect. She cried; the appellant stopped and said thank you for
    trying. From then on he tried to have intercourse with her without a condom and
    she would fight him off.

[21]

Finally,
    the complainant testified that the appellant insisted on taking nude pictures
    of her. He began doing so when she was nine or ten years old. When she was between
    14 and 16, he had a photography studio in the house, and took more nude
    pictures of her. She testified that she did not want to pose for these
    pictures, but he would insist until she gave in. Later, she asked the appellant
    to destroy the pictures of her, and he said that he would.

[22]

Although
    the complainant knew that what the appellant was doing to her was wrong, he
    told her that if she disclosed their sexual activity, their family would be
    destroyed and the stress would kill her mother. He told the complainant that
    God had brought the two of them together, and that these things had been
    going on for thousands of years. He also insisted that the complainant owed
    him these services because he had housed her, fed her, taught her, and
    protected her.

C.

The
    Issues

(1)

Did the trial judge err by rejecting the evidence
    of the appellant and his wife based on their past involvement in a subsidized
    housing scam?

[23]

The
    trial judge gave at least six reasons for finding the appellants denial of
    sexual abuse devoid of credibility, none of which is impugned on appeal.

·

The appellants nothing short of preposterous explanation for
    his admitted secret and intimate examination of his 13-year-old step-daughter 
    to assure himself she had not been injured in her dalliance with her
    boyfriend  and for his failure to tell his wife until after his arrest.

·

The appellants threats to the family of the complainants
    boyfriend after she left home to live with them, threats for which the
    appellant was charged and pleaded guilty. The appellant said he was trying to
    protect his step-daughter from sexual predators and drug dealers. The trial
    judge found his claim weak and unconvincing and instead found that the most
    reasonable explanation for the appellants conduct was his fear the
    complainant would disclose marathon sexual abuse to which she had been
    exposed.

·

The appellants claims of Biblical knowledge supported the
    complainants assertion of his use of his knowledge of the Bible as a
    justification for his abuse of her.

·

The appellants evasiveness in explaining the basis for his receipt
    of disability support payments.

·

The appellants testimony was replete with exaggeration and
    hyperbole. For example, after looking at Facebook photos of the complainant
    and her friends, the appellant accused them of having sex off-camera; he
    insisted alcohol is an industrial solvent and poison; he referred to the
    father of the complainants boyfriend as a dead beat dad, a creep, a drug
    dealer, and a pimp, without any rational basis for doing so; he suggested
    his own step-daughter was a tart and his son I.C. had a mental illness when
    he testified.

·

The appellants evidence about a poem I.C. had written to the
    complainant in which I.C. had said he would always be her brother and she could
    always speak to him about any problems in her life. The appellant testified
    that the poem contained an eerie message about a weird secret, which, to
    the trial judge, suggested that the appellants own dirty little secret had
    almost been disclosed, and thus explained his anger towards his son I.C.

[24]

The
    trial judge also rejected the evidence of the appellants wife because he found
    her explanation justifying her marriage after the complainants disclosure of
    her husbands abuse borders on the incomprehensible; and most importantly
    because she attempted to mislead the court by suggesting that the transcript
    of her police interview was doctored. These findings too are not challenged
    on appeal.

[25]

Nonetheless,
    the appellant submits that the trial judge erred in one of the reasons he gave
    for rejecting his evidence and the evidence of his wife, and that this error
    taints the trial judges entire credibility analysis and warrants a new trial.
    The error relates to the trial judges observation that by maintaining separate
    residences, the appellant and his wife were involved in some sort of housing
    scam. In discussing the appellants evidence the trial judge said:

Both he and his wife provided no satisfactory explanation for
    the reason they maintained separate residences prior to moving to Peterborough
    despite the fact they had two children together. The only explanation I can
    perceive for such obfuscation is that they were involved in some subsidized
    housing scam.

[26]

And
    in discussing the evidence of the appellants wife, the trial judge again
    referred to their involvement in some sort of housing scam:

Her limp attempt to justify the accused and herself maintaining
    separate residences despite having two children together suggest their
    involvement in some sort of housing scam.

[27]

The
    appellant contends there was no evidence to support a finding that he and his
    wife were involved in a housing scam. The appellant was not cross-examined on
    the subject of a housing scam. His wife gave a reasonable explanation for their
    living arrangements: they each had pre-existing subsidized or inexpensive
    housing, which was too small to accommodate both them and their children; and
    they could not obtain a larger unit of subsidized housing or afford to buy or
    rent a larger place. The trial judges finding of a scam was thus pure
    speculation, unsupported by the evidence.

[28]

Perhaps
    the trial judge went too far in suggesting that the appellant and his wife were
    involved in a scam. But he was concerned, legitimately so, by their
    inconsistent answers for why they maintained separate residences. Despite
    acknowledging a very limited work history, the appellant said he likes to live
    alone because he has to be alone to do his work. His wife, on the other hand,
    acknowledged in cross-examination that she wanted to maintain her entitlement
    to subsidized housing.

[29]

However,
    even if the trial judge erred in finding that the appellant and his wife were
    involved in a housing scam, this error was insignificant. At best, it played a
    minor and peripheral role in the trial judges rejection of their evidence. He
    gave many more cogent reasons for rejecting their testimony. Bearing in mind
    the appellate deference to a trial judges findings of credibility, this error,
    even if so characterized, did not taint the trial judges credibility analysis.
    I would not give effect to this ground of appeal.

(2)

Did the trial judge err by rejecting
    the evidence of the appellants two youngest children because of their
    relationship to him?

[30]

The
    appellants two youngest children, N.C. and H.C., were teenagers by the time of
    trial. They both testified for the defence. They said that over the years they
    neither saw nor heard anything to support their stepsisters allegations of
    sexual abuse by their father. The trial judge found that their evidence did not
    give rise to a reasonable doubt about their fathers guilt. The trial judge
    held, in the passage the appellant relies on:

I agree with the Crown that it is evident that these witnesses
    are still under the influence of both their parents, two very domineering
    personalities in my opinion. In addition, their denials of any opportunity
    their father may have had to molest the complainant is totally neutralized by
    the significant support of the complainant I canvassed earlier in these
    reasons. That evidence, to varying degrees, comes from independent and
    impartial witnesses who have little interest in the outcome of this
    prosecution. The accuseds son and daughter both have significant interest in
    the outcome of this case and for that reason I cannot give any weight to their
    testimony in favour of their father.

[31]

The
    appellant submits that it is an error for a trial judge to reject a witness
    evidence solely because of the witness relationship to the accused.

[32]

Also
    relying on the above passage from the trial judges reasons, the appellant
    makes the collateral submission that the trial judges treatment of the evidence
    of N.C. and H.C. has to be contrasted with his much different treatment of the
    evidence of B.S. and I.C., both of whom he found to be independent and
    impartial, even though they were aligned with the complainant. I will first
    deal with the appellants main submission on this ground of appeal, and then
    his collateral submission.

[33]

The
    trial judge was certainly concerned that none of the other family members had
    acknowledged having seen or heard any of the sexual abuse to which the
    complainant testified. Part way through his reasons the trial judge observed:

I agree with Mr. Cowans [defences] submission that I should
    approach the complaint herein with significant scepticism given the fact it
    involves allegations of accelerating and unrelenting sexual abuse in a domestic
    context where none of the other members of the parties family have admitted to
    having seen or heard a hint of the conduct with which the accused is charged.

[34]

And
    I agree with the appellant that the trial judge would have erred had he discounted
    the evidence of N.C. and H.C. solely because they were the appellants
    children. In
R. v. Laboucan
, [2010] 1 S.C.R. 397 at para. 11, Charron
    J. wrote:

The fact that a witness has an interest in the outcome of the
    proceedings is, as a matter of common sense, a relevant factor, among others,
    to take into account when assessing the credibility of the witnesss
    testimony.  A trier of fact, however, should not place undue weight on the
    status of a person in the proceedings as a factor going to credibility.  For
    example, it would be improper to base a finding of credibility regarding a
    parents or a spouses testimony solely on the basis of the witnesss
    relationship to the complainant or to the accused.  Regard should be given to
    all relevant factors in assessing credibility.

[35]

But
    the trial judge did not reject the evidence of the appellants children solely
    because of their relationship to their father. He mainly rejected the evidence
    of N.C. and H.C. because, in his view, they were still under their parents
    influence. That was a legitimate basis to reject their evidence and it was a
    basis well supported by the evidence. The appellant admitted that he ran the
    household kind of like a lion pride. Chris Hohner, a friend of the appellant,
    who testified for the Crown, said the appellant commanded obedience from the
    children and from D.C. he was in total charge of things. He had a temper,
    could become angry, could issue commands that brooked no opposition, and would
    tell the children where to go and what to do. When asked whether the children
    would ever dispute the appellants commands, Mr. Hohner replied, No, they
    wouldnt dare to, nor would D.C.. Thus the trial judge did not err in giving
    no weight to the exculpatory evidence of N.C. and H.C.

[36]

Last,
    I turn to the trial judges treatment of the evidence of B.S. and I.C. B.S.,
    the appellants former partner and I.C.s mother, testified that in 2004 when
    the complainant was 14 or 15 years old, she went to the appellants residence
    to pick up some of I.C.s belongings. She did so because I.C. had a falling out
    with the appellant and did not want to stay with him. B.S. said that while she
    was there, she saw the appellant pull the complainant across his lap and held
    her from behind with one hand beneath her breast. N.C. was present at the time
    and said Oh, dads always doing that. B.S. testified that she was upset by
    what she had seen, she called the complainants mother to tell her about the
    incident, and later told the appellant he should keep his hands off the
    complainant.

[37]

I.C.
    testified that he occasionally saw bodily contact between the appellant and the
    complainant, including the appellants standing close behind the complainant or
    rubbing up against her. On one occasion, he overheard the complainant say: Okay,
    thats enough touching. I.C. also testified that once he walked in on the
    appellant and the complainant when they were having a nap and saw a blanket
    shuffle while they were together in bed. Finally, I.C. testified that he
    helped the appellant with his glamour photography and in doing so saw many
    pictures of the complainant, including one in which she wore a toga and had one
    breast exposed.

[38]

In
    the passage from the trial judges reasons I quoted earlier in this section,
    the trial judge found significant support for the complainants allegations
    in the evidence, in varying degrees, from independent and impartial
    witnesses who have little interest in the outcome of this prosecution. In this
    finding, the trial judge was likely referring mainly to the evidence of I.C.
    and to a lesser extent the evidence of B.S.
[1]


[39]

The
    appellant submits that neither B.S. nor I.C. was independent and impartial. B.S.
    was a partisan witness and hostile to the appellant. They had separated after a
    violent fight, and she finally admitted during cross-examination at trial that
    she did not like the appellant because he abused his step-daughter, and he
    caused a lot of damage to a lot of people. I.C. too, the appellant argues,
    supported the complainant and was outright hostile to the appellant. I.C.
    admitted he resented the appellant for kicking him out of the house, he
    encouraged the complainant to have the appellant charged, he called the
    appellant a dickwad in an email, and he referred to the appellant as a
    douchebag in his statement to the police.

[40]

The
    trial judge was right to say that neither B.S. nor even I.C. had a great
    interest in the outcome of the prosecution, certainly not in the way N.C. and H.C.
    did. By the time of trial B.S. had been separated from the appellant for over
    20 years, and I.C. no longer lived with the appellant or had anything to do
    with him. I accept that both were hostile to the appellant  I.C. more so than B.S.
     and so neither might be seen as entirely impartial. But their hostility or
    animus toward the appellant does not justify disregarding their evidence, or
    more importantly, taint the trial judges acceptance of the complainants
    compelling evidence of sexual abuse. I would not give effect to this ground of
    appeal.

D.

Conclusion

[41]

The
    trial judge did not make any error in his credibility findings that would
    justify this courts intervention. I would dismiss the appeal.

Released: January 28, 2016 (J.L.)

John Laskin J.A.

I agree. C.W. Hourigan J.A.

I agree. G. Pardu J.A.





[1]
Chris Hohner, the appellants friend also testified. He said that the appellant
    was pre-occupied with sex and would display soft porn images on his computer.
    His evidence does not directly bear on the charges against the appellant.


