



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)      two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)      on application made by the complainant,
    the prosecutor or any such witness, 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).

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. J. C., 2017 ONCA 392

DATE: 20170516

DOCKET: C60442

Strathy C.J.O., Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J. C.

Appellant

Gordon Cudmore, for the appellant

Jill Witkin, for the respondent

Heard: May 12, 2017

On appeal from the conviction entered by Justice K. Gorman
    of the Superior Court of Justice, dated June 6, 2014.

REASONS FOR DECISION

[1]

The appellant appeals from his conviction for sexual interference
    arising from sexual acts relating to his daughter when she was between the ages
    of 3 and 9.

[2]

The appellant submits that the trial judge erred in her application of
R.
    v. W.(D.)
, (1991), 63 C.C.C. (2d) 399  and provided insufficient reasons.

[3]

We disagree.  This was a two-day trial that turned on credibility.  The
    appellant was the primary caregiver of his two young daughters while his wife
    worked full-time.  The sexual acts usually occurred in the afternoon after bath
    time and involved inappropriate touching of the complainant by the appellant
    while he masturbated and then ejaculated on the complainants lower back or bum. 
    The evidence of the appellant and the complainant conflicted.  Opportunity to
    commit the offences was conceded.

[4]

The trial judge gave a 12-page oral judgment.  She considered and
    applied
R. v. W.(D.)
.  She did not believe the appellants evidence
    nor did it leave her with a reasonable doubt.  The appellant testified in a
    rambling or abrupt manner, depending on the subject, and the trial judge found
    his denial of never having bathed or towelled the complainant to defy common,
    human logic and sense.  She found the complainant to be credible and her recollection
    to be consistent and clear.  In particular, she noted the detail employed by
    the complainant, the unusual nature of the acts she described, and her failure
    to embellish her evidence.  The trial judge placed little weight on the
    mothers evidence given her numerous meetings with the appellants counsel and
    her familiarity with the Crowns case.  The trial judge considered all the
    evidence and was satisfied beyond a reasonable doubt that the appellant was
    guilty.

[5]

We see no reversible error in the trial judges assessment of the
    witness credibility and her findings are entitled to deference.

[6]

The trial judge was entitled to accept the complainants account of the
    bathing ritual and to reject the appellants conflicting account for the
    reasons she gave.

[7]

Nor can we fault the trial judge for her treatment of Mrs. [C.]s
    evidence.  Specifically, she was entitled to assess Mrs. [C.]s impartiality,
    and to consider whether she had an interest in the outcome of the trial or a
    motive to tailor her evidence.  Her reasons for discounting Mrs. [C.]s
    testimony reveal that she was alert to these factors.

[8]

We also reject the appellants claim that the trial judge erred in her
    assessment of the complainants testimony because she failed to consider
    inconsistencies in her testimony.  First, neither at trial nor before this
    court have any material inconsistencies been identified or asserted by the
    appellant.  Second, on our review of her testimony, any inconsistencies in the
    complainants evidence were minor or peripheral in nature.

[9]

We also see no error in the trial judges treatment of the Crowns
    evidence regarding the materials found by the police on searching the
    appellants computer.  The trial judge noted this evidence and made no more of
    it.

[10]

Lastly, read in the context of the evidence as a whole and the
    submissions of counsel, the trial judges reasons for decision were adequate. 
    The pathway and rationale for the appellants conviction are fully explained by
    the reasons and permit effective appellate review.

[11]

For these reasons, the appeal is dismissed.

G.R. Strathy J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.


