



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. G.D., 2021 ONCA 414

DATE: 20210614

DOCKET:
C67436

Pardu, Brown and Paciocco JJ.A.

BETWEEN.

Her Majesty the Queen

Respondent

and

G.D.

Appellant

G.D., acting in person

Ian Smith, duty counsel

Phillipe Cowle, for the respondent

Heard: April 9, 2021 by video
    conference

On appeal from the conviction entered by
    Justice Alexander D. Kurke of the Superior Court of Justice on February 5, 2019,
    and from the sentence imposed on July 26, 2019, with reasons reported at 2019
    ONSC 40, 370 C.C.C. (3d) 221.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault of two young teenagers and
    was sentenced to a prison term totaling 8.5 years. He appeals from conviction
    and seeks leave to appeal from sentence.

[2]

Each of the complainants described a course of sexual assaults upon
    them.

[3]

The complainant P.T., then thirteen years old, asked the appellant if he
    could live in his apartment. The appellant agreed and did not demand rent from
    the complainant. The appellant admittedly supplied PT with alcohol and drugs.

[4]

According to the complainant,
the appellant climbed
    into P.T.s bed behind P.T. and held and squeezed P.T.s penis through his
    underwear, and humped his crotch into P.T.s buttocks

[5]

The second incident involved similar touching
    and circumstances. While P.T. had slept, the appellant had positioned himself
    on the floor beside the bed, low enough down the side of the bed so that his
    hand could reach P.T.s penis.

[6]

P.T. left the apartment after this last
    incident.

[7]

According to the complainant W.V., the incidents
    took place in the V. family home, in the City of Greater Sudbury, from
    1999-2001. At that time, W.V.s parents had to make frequent trips to Toronto
    to deal with a sibling who was gravely ill, and the appellant was permitted to
    stay at the family home. The appellant was entrusted to help W.V who was, at
    that time, fifteen years old. Various people may have been in the home when the
    incidents occurred.

[8]

On each of the many incidents in question,
    before sleeping, W.V. had been consuming drugs and alcohol provided to him by
    the appellant or with the encouragement of the appellant

[9]

The first occasion of sexual touching of W.V. by
    the appellant took place on the rec room floor, where W.V. had either passed
    out or fallen asleep from the consumption of drugs and alcohol. W.V. awoke to
    find a hand down the front of his pants.

[10]

On numerous occasions, the appellant took
    advantage of W.V.s unconsciousness or sleep to masturbate W.V., including to
    the point of ejaculation. W.V. would awaken to find that this conduct by the appellant
    was occurring. On two occasions, W.V. was asleep or unconscious in his room
    when the appellant penetrated W.V.s anus with his penis. The appellant guided
    W.V. into accessible positions.

[11]

The assaults of W.V. ended when the appellant left
    the home, and no longer had access to W.V.

[12]

The defence at trial was that the incidents
    never happened, and that the complainants evidence was unreliable and not
    credible.

[13]

The appellant testified, but the trial judge
    rejected his evidence as evasive, self-serving, and contrary to common sense
    and reason. The trial judge applied
R. v. W.(D.)
,
[1991] 1
    S.C.R. 742,
and convicted the appellant on both counts.

[14]

The appellant, acting in person, pointed the
    court to various aspects of the evidence. These do not establish any reversible
    error on the part of the trial judge.

[15]

Duty counsel, on behalf of the appellant, argues
    that the trial judge made an error of law that requires this court to set aside
    the convictions and order a new trial.

[16]

In relation to W.V., duty counsel points to the trial
    judges credibility assessment. First, at para. 147, the trial judge noted WV
    could have exaggerated or minimized what he recollected, but did not do so
    before giving several examples. Second, at para. 153, the trial judge noted
    that there were undeniable frailties relating to the reliability of the evidence
    of WV, but that candour and lack of exaggeration speak highly of his
    credibility.

[17]

Counsel argues that this kind of reasoning
    reflects an error in principle, relying on
R. v.
    Alisaleh
,
2020 ONCA 597
, paras. 13-17. In
Alisaleh
, this court observed,
    at para. 16, that:

[I]t is not an
    error to simply note that there is an absence of embellishment in the
    complainants testimony. This court has held that the presence of embellishment
    can be a basis to find the complainant incredible, and there is nothing wrong
    with noting the absence of something that could have diminished credibility.
    However,
it is wrong to reason
    that because an allegation could have been worse, it is more likely to be true
. [Emphasis added.]

[18]

Counsel submits that the same problem affects
    the trial judges reasoning in respect of the first complainant, P.T. At para. 133,
    the trial judge points to P.T.s criminal record, but nevertheless finds him a
    compelling witness, noting the lack of exaggeration. The trial judge returns to
    this theme at para. 135. Counsel submits that the trial judge erred in using
    lack of exaggeration as a makeweight in favour of credibility, contrary to
    this courts instruction in
R. v. Kiss
, 2018 ONCA 184, at para. 53.

[19]

The Crown submits that, while it would have been
    better if the trial judge had avoided any reference to a lack of exaggeration,
    this court noted in
Kiss
that it is not an error to note the absence of something that could
    diminish credibility. The crucial question is whether the trial judge reasoned
    that because the allegation was not worse, it was likely to be true: see
Kiss
, para. 52;
Alisaleh
, at para. 16.

[20]

It is clear from the trial judges reasons that
    he engaged in a detailed and thorough review of the evidence of both complainants.
    Reading the reasons as a whole, we would interpret the impugned passages as
    references to an absence of a matter that would diminish W.V. or P.T.s credibility.
    We agree with the Crown that when the trial judge indicated that the
    complainant W.V. did not exaggerate, he meant that the complainant was ready to
    acknowledge the limits of his memory.

[21]

The appeals from conviction are accordingly
    dismissed.

[22]

As to sentence, there is no basis to intervene. The
    appellant was around forty years old when he befriended the vulnerable young
    complainants. He fed them drugs and alcohol to facilitate the commission of the
    offences. There was an element of breach of trust in relation to both.

[23]

The assaults have had serious negative
    consequences for the well-being of both complainants. The seven-years-and-six-months
    imprisonment for the sexual assault upon W.V. and the one-year consecutive sentence
    for the sexual assault of P.T. were within the range established by the
    jurisprudence and there is no basis to intervene. Leave to appeal sentence is
    granted but the appeals from sentence are dismissed.

G.
    Pardu J.A.

David
    Brown J.A.

David
    M. Paciocco J.A.


