



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    that could identify the complainant or a witness shall not be published in any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. F.L., 2017 ONCA 472

DATE: 20170608

DOCKET: C61741

Weiler, Feldman and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

F.L.

Appellant

Vincenzo Rondinelli, for the appellant

Hannah Freeman, for the respondent

Heard: April 26, 2017 to April 28, 2017

On appeal from the convictions entered on October 16,
    2015 by Justice William M. Le May of the Superior Court of Justice, sitting without
    a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault,
    sexual interference, and invitation to sexual touching following a trial by
    judge alone. The sexual assault and invitation to sexual touching convictions
    were stayed pursuant to
Kienapple
and the
    appellant was sentenced to a term of 8 years imprisonment. He appeals from
    conviction, submitting that the judge made palpable and overriding errors in
    making the credibility assessments that were central to the case.

[2]

At the conclusion of oral argument, we dismissed
    the appeal with reasons to follow.  These are those reasons.

A.

The complaint

[3]

The complainant, the appellants step-daughter,
    complained of a series of incidents that occurred when she was between 5 and 14
    years of age. She first discussed the allegations with the police when she was
    15 years old. She was 19 years old at the time of trial.

B.

The evidence

[4]

The complainant testified that the first
    incident occurred when she was five years old. She was in the bathtub with the
    appellant when he asked to put his penis into her mouth. The appellant
    testified that she was assaulted two to three times weekly until she was 14
    years old. The assaults involved oral and anal sex and occurred in the family
    home, and later at the appellants apartment, following his separation from the
    complainants mother.

[5]

The assaults occurred following requests from
    the complainant to go somewhere or to do something, and later for money or
    electronics. The complainant testified that the appellant would tell her that
    she had to do something in return. He would sometimes use a hand gesture, or
    stick his finger in the middle of her bum and press, especially if the
    complainants half-sister R.L. was present.

[6]

The complainants mother, A.C., testified that the
    appellant was wonderful with the complainant and she was very attached to him
    emotionally and related to him as a father. The complainant and R.L. continued
    to visit the appellant after he moved out of the family home. A.C. testified,
    further, that the complainant had attempted suicide shortly after telling her
    about her allegations against the complainant.

[7]

The appellants current wife, A.D.S., testified
    that the complainant would visit the appellant and her twice weekly. She said
    that she was always home when the complainant visited and would not leave the
    apartment on her own. She testified that she was trying to learn English but
    could not speak it. She testified that the complainants behaviour changed once
    she learned that A.D.S. was pregnant, and that she kinda didnt like it.

[8]

The appellant testified and denied all of the
    complainants allegations. He acknowledged being naked in the bathtub taking a
    bubble bath with the complainant when she was young, but saw nothing wrong with
    this because it was as if he were the complainants father.

C.

The trial judges decision

[9]

The trial judge applied the
W.(D.)
,
    [1991] 1 S.C.R. 742,
test. He did not believe the accuseds
    testimony; found that the appellants testimony did not raise a reasonable
    doubt; and concluded that the evidence, taken as a whole, did not raise a
    reasonable doubt.

[10]

In particular, the trial judge was satisfied beyond
    a reasonable doubt that the appellant

·

regularly asked the complainant to perform oral sex on him and to
    engage in sexual touching by touching his penis and placing it in her mouth;

·

forced anal sex on the complainant on at least two occasions; and

·

performed oral sex on the complainant on more than one occasion.

The assaults occurred when the
    complainant was between 5 and 14 years of age.

D.

Issues on appeal

[11]

The appellant argues that the trial judges
    credibility findings were tainted by palpable and overriding errors concerning:

1.

The complainants selective dishonesty;

2.

The complainants evidence after she turned 14
    years of age;

3.

The appellants wifes presence in the apartment
    where assaults were alleged to have occurred;

4.

Gifts given to the complainant by the appellant;
    and

5.

The complainants motivation to lie.

Each of the alleged errors is
    addressed in turn.

E.

Analysis

(1)

The complainants selective dishonesty

[12]

In cross-examination, the complainant
    acknowledged a history of what she termed selective dishonesty in the
    following exchange:

Q: [D]o you agree that during the course of,
    of what  between your pages [sic] of 5 and 14, you were always telling lies to
    everyone? Would you agree with that statement?

A: Can you be more specific?

Q: Were you in the habit of telling lies
    during that period of time, especially when youre growing a little older,
    lets say between 10 and 14? Were you in the habit of telling lies to
    everybody?

A: I think it was selective dishonesty.

[13]

The trial judge addressed the matter as follows:

[D]oes the complainants admitted history of selective
    dishonesty when she was in her early teens affect the credibility of her
    testimony? In my view, it does not for two reasons:

(a)
The complainant candidly acknowledged this problem when she was testifying
    before me.

(b)
She also acknowledged a history of drug and alcohol abuse, as well
    as other psychological issues that she had at the time. The complainants
    testimony in this regard actually enhances her credibility, rather than
    diminishing it, as she is able to recognize her own frailties.

[14]

The appellant submits that although it was open
    to the trial judge to find that the complainants admitted drug use and history
    of lying did not undermine her credibility, the trial judge erred by using the
    complainants admission of dishonesty to bolster her credibility:
R.
    v. D.T.
, 2014 ONCA 44, 305 C.C.C. (3d) 526,
at paras.
    89-90.

[15]

We disagree.

[16]

This is not a case like
D.T.
, in which the trial judge wrongly concluded that recantation of one
    allegation against the accused meant that another allegation that was not
    recanted was more believable. The appellants selective dishonesty did not
    concern specific allegations that went to the core of her complaint against the
    accused, as in
D.T.

The complainants
    acknowledgment of selective dishonesty was a general description of her
    behaviour between the ages of 10 and 14. She did not recant a specific
    statement that revealed animus against the accused, as occurred in
D.T.

[17]

The trial judges remarks were made in the
    context of finding that the complainants acknowledgment of drug and alcohol
    abuse and psychological issues did not undermine her credibility. Read as a
    whole, his reasons do not reveal error and are entitled to deference.

(2)

The complainants evidence after age 14

[18]

The appellant acknowledges that the trial judge
    was entitled to apply a less exacting standard to peripheral matters that
    occurred during the complainants childhood, as this court noted in
R.
    v. A.M.,
2014 ONCA 769, 123 O.R. (3d) 536, but submits
    that he erred by failing to assess the complainants credibility on several
    matters she claimed not to recall, all of which would have occurred after she
    turned 14 years old.

[19]

We disagree.

[20]

As the Supreme Court pointed out in
R.
    v.

R.W.
, [1992] 2 SCR 122, at p. 134,
there are
    no hard and fast rules as to when a witnesss evidence should be assessed by
    reference to adult or child standards. Read as a whole, the trial judges
    reasons demonstrate that he appreciated the need to determine the reliability
    of the complainants evidence having regard to her age at the relevant time.

[21]

Simply because the trial judge did not advert to all four areas concerning
    the complainants alleged lack of recollection in making his credibility finding
    does not mean that he ignored this evidence. Indeed, much of it was set out in
    the trial judges thorough summary of the evidence.
The trial
    judge carefully considered the evidence and there is no basis for concluding
    that he erred in doing so. The trial judge was not required to refer to every
    piece of evidence in making his credibility and reliability findings. The trial
    judges reasons for accepting the evidence were not inadequate.

(3)

The appellants wifes presence in the apartment

[22]

The appellant submits that the trial judge erred
    in finding that A.D.S.s testimony  that she would not leave the small
    apartment she shared with the appellant unless the appellant was with her  was
    not credible. The appellant says this finding was based on speculation.

[23]

We disagree.

[24]

It was not contested that the apartment was
    small. It requires no speculative leap to be skeptical of A.D.S.s testimony,
    which would have resulted in her remaining at the small apartment alone for
    long periods of time while the appellant was away working full-time, and
    remaining at the apartment during the complainants visits even though she
    could not speak to the complainant without English translation. The trial
    judges finding that A.D.S.s evidence on this point was difficult to accept
    is entitled to deference. In any event, the trial judge clearly understood the
    import of the appellants wifes evidence. He found that it did not raise a
    reasonable doubt.

(4)

Gifts given to the complainant

[25]

The appellant submits that the trial judges
    finding that the appellant would give the complainant gifts in exchange for
    sexual acts is undermined in the context of the complainants evidence that
    there were hundreds of assaults. The appellant submits, further, that the trial
    judge failed to consider A.C.s evidence that the disparity in gifts the
    appellant gave the complainant compared to R.L. was the result of R.L.s
    passive nature in requesting gifts.

[26]

We disagree.

[27]

There was ample evidence, such as the evidence
    of the complainants mother, to support the trial judges finding that there
    was a disparity in gifts given by the appellant to the complainant and R.L.,
    and it was open to him to accept the complainants evidence that the disparity
    reflected an exchange associated with the sexual assaults. The trial judge was entitled
    to reject the inference that the disparity in gifts was because R.L. did not
    ask for gifts  an inference that ran counter to the appellants evidence that
    he treated the complainant and R.L. equally. Although the trial judge did not
    mention A.C.s evidence concerning R.L. not asking for gifts, he made no error
    in doing so. As indicated, a trial judge is not required to refer to every
    piece of evidence in making his decision.

(5)

The complainants motivation to lie

[28]

The appellant submits that the trial judge erred
    in assessing whether the complainant had a motive to lie, arising out of her
    jealousy of the appellants wifes pregnancy.

[29]

We disagree.

[30]

The trial judge dealt briefly with the jealousy
    issue, stating that the appellants evidence that he did not see any problems
    in the relationship between A.D.S. and the complainant in the summer of 2010
    contradicted the argument put forward by his counsel. He did not refer to all
    of the evidence in reaching this conclusion, but was under no obligation to do
    so. The trial judge did mention the complainants preliminary inquiry evidence,
    and earlier in his decision set out A.D.S.s evidence that her relationship with
    the complainant had changed once the complainant learned that she was pregnant.
    The trial judges description of the evidence as very limited may be inapt,
    but in our view the trial judges conclusion that the evidence before him did
    not demonstrate a motivation on the part of the complainant to lie was open to
    him on the record.

F.

Conclusion

[31]

The appeal is dismissed.

K.M.
    Weiler J.A.

K.
    Feldman J.A.

Grant
    Huscroft J.A.


