



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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., 2018 ONCA 883

DATE: 20181105

DOCKET: C63911

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.E.

Appellant

Melanie Webb, for the appellant

Joseph Hanna, for the respondent

Heard and released orally: November 1, 2018

On appeal from the conviction entered on February 28,
    2017 by Justice Myrna L. Lack of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault and sexual exploitation by
    Lack J. of the Superior Court of Justice. He was sentenced to 12 months
    imprisonment, concurrent on both counts, plus two years probation, a lifetime
Criminal
    Code
s. 109 weapons prohibition, a lifetime SOIRA order, and a DNA order.
    He appeals from the convictions.

[2]

At the time of the alleged offences, the appellant and the complainant
    were members of a bagpipe band. The band had about 20 to 30 members. The
    complainant usually played bass drums. The appellant was in charge of the
    bands mid-section which included the bass drums. The appellant was also the
    bands manager, although he had no authority over band members in the sense of
    disciplining or terminating them.

[3]

The timeframe of the alleged offences was from 2012 to 2014. During this
    period the complainant was between 16 and 20 years old and the appellant was
    between 61 and 65.

[4]

The Crown alleged that the appellant committed the crime of sexual exploitation
    on several occasions: (1) at a parade when the complainant was 16 years old;
    (2) during the complainants 17
th
birthday party at the appellants
    home; and (3) in a hotel room when the complainant was 17 years old.

[5]

The Crown alleged that the appellant committed the crime of sexual
    assault on the following occasions: (1) in the appellants recreational vehicle
    (RV) when the complainant was 18 years old; (2) in the appellants trailer
    after the complainant turned 18; and (3) in the appellants RV when the
    complainant was 20 years old.

[6]

The trial lasted 12 days. Both the complainant and the appellant
    testified.

[7]

The Crown brought a similar fact application in regard to the
    allegations of unwanted sexual touching made against the appellant by two other
    young members of the band. The trial judge admitted the similar fact evidence,
    saying:

I conclude that the allegations of [A] and [B] are suggestive
    of a pattern of conduct so distinctively similar to be capable of supporting
    the inferences sought in relation to [the complainants] allegations.

[8]

In her trial reasons, the trial judge found the complainant to be a
    credible witness. In contrast, she found that the appellant had an inconsistent
    and unbelievable memory of events and that parts of his testimony were
    nonsensical and fabricated. She convicted the appellant of sexual assault and
    sexual exploitation.

[9]

The appellant appeals on four grounds.

[10]

First,
    the appellant contends that the trial judge applied an uneven standard of
    scrutiny to the evidence of the complainant and the appellant. Specifically,
    the appellant says that it was unfair for the trial judge to criticize his
    amazing recall of the most ordinary and unremarkable circumstances and draw a
    negative inference from this and not make a similar observation about the complainants
    similar testimony. In addition, the appellant asserts that the trial judge
    expressed skepticism about his testimony but failed to scrutinize similar
    improbabilities in the complainants testimony.

[11]

We
    do not accept this submission. As this court has said recently, the uneven
    scrutiny argument is a very difficult one to make successfully because it
    essentially invites the appellate court to re-assess the trial judges
    credibility determinations and to re-try the case on an arid, printed record: see
R. v. Radcliffe
, 2017 ONCA 176, at para. 23.

[12]

After
    carefully reviewing the trial judges reasons, we do not see an unfair or uneven
    scrutiny of the various witnesses testimony by the trial judge. The problem
    for the appellant was his own testimony, not the trial judges scrutiny of it.
    To take but one example, we refer to this passage from the trial judges
    reasons:

I also found that [the appellants] description of the sexual
    events did not make sense. On nearly every occasion when he said that [the
    complainant] made an overt sexual action toward him, [the appellant] said that
    he asked [the complainant] if he was okay with it. As a matter of common sense,
    it is not logical that a person would ask a sexual aggressor  one who has made
    his wishes clear by his physical actions or words  for consent.

[13]

Second,
    the appellant challenges a single stand-alone paragraph in the trial judges
    reasons:

I should also add that a number of matters that [the appellant]
    testified to were not put to [the complainant] in cross examination. Most
    striking was that it was never put to [the complainant] that he was the sexual
    aggressor after he turned 18.

[14]

The
    appellant contends that this negative comment was unfair because defence
    counsel had conducted a comprehensive cross-examination of the complainant on
    virtually every aspect of his testimony.

[15]

We
    are not persuaded by this submission. Even if the trial judge misapplied the
    rule in
Browne v. Dunn
(1893), 6 R. 67 (U.K.H.L.), her soft
    criticism of the appellant on this point is of no moment in the context of the
    trial judges several reasons for rejecting the appellants testimony.

[16]

Third,
    the appellant asserts that the trial judge erred by not addressing the Crowns
    failure to call certain witnesses, especially witnesses who were allegedly
    present in the RV, trailer and hotel where some of the incidents occurred.

[17]

We
    disagree. A trial judge should draw an adverse inference from the failure of a
    party to call a witness only with the greatest of caution: see
R. v. Ellis
,
    2013 ONCA 9, at para. 49. Defence counsel present at the trial did not make
    such a request. And the defence could have called the relevant witnesses,
    especially in the context of a trial where the accused testified.

[18]

Fourth,
    the appellant contends that the trial judge erred by allowing the similar fact
    application. With respect to one of the proposed similar fact witnesses, the
    Crown had chosen to drop charges against the appellant with this witness as the
    complainant; including him as a similar fact witness might amount to the
    re-litigation of the charges involving him. With respect to both of the similar
    fact witnesses, the evidence relating to them bore no real similarity to the
    evidence relating to the charges involving the complainant.

[19]

We
    do not accept these submissions. Recently, this court upheld a trial judges decision
    to permit the use of withdrawn charges as similar fact evidence: see
R. v.
    D.S.
, 2017 ONCA 131, at paras. 21-22. On the similarity point, in her
    reasons on the similar fact application the trial judge acknowledged the
    differences but found that the similar fact witnesses evidence supported the
    potential inference that the appellant had a situation specific propensity to
    use his trusted position and status in the band to sexually groom, sexually
    assault and sexually exploit young men in the band he finds in vulnerable
    circumstances. We do not fault this analysis.

[20]

The
    appeal is dismissed.

J.C. MacPherson J.A.

B.W. Miller J.A.

David M. Paciocco
    J.A.


