



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    that could identify the complainant or a witness shall not be published in any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. T.D.A., 2017 ONCA 910

DATE: 20171127

DOCKET: C60671

Laskin, Feldman and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.D.A.

Appellant

M. Halfyard and B. Vanderbeek, for the appellant

Michael Fawcett, for the respondent

Heard: October 27, 2017

On appeal from the conviction entered on April 9, 2015 by
    Justice Barry G.A. MacDougall of the Superior Court of Justice, sitting without
    a jury.

By the Court
:

Background

[1]

The appellant seeks to set aside his convictions for sexual
    interference, invitation to sexual touching and sexual assault.
[1]


[2]

At the time of the offences, the complainant was approximately nine
    years of age. At the time of trial she was 13. She is the appellants
    step-granddaughter. She frequently slept over at the appellants home and
    alleged that on three separate occasions between January, 2011 and August,
    2012, he touched her inappropriately by placing his hand up her shirt (on two
    occasions) and by placing her hand over his crotch area (on one occasion). The
    first incident occurred when the appellant was sleeping beside her on a pullout
    couch in the basement; the second, when she was sitting on his lap; and the
    third, when she and the appellant were watching a movie in an upstairs bedroom.
    There was no touching of the complainants genitals.

[3]

At trial, the Crown was permitted to call the evidence of two similar
    fact witnesses  both adult nieces of the appellant at the time of trial  who
    testified that when they were about the same age as the complainant, and would
    sleep over at the appellants home, the appellant touched them inappropriately
    in similar ways.

[4]

The appellant raises four grounds of appeal. He submits that the trial
    judge erred (i) in admitting the similar fact evidence; (ii) in failing to deal
    fairly with material inconsistencies in the complainants evidence and by
    relying too heavily on the complainants demeanour; and (iii) by using his rejection
    of the appellants and his wifes testimony to draw impermissible inferences of
    guilt. Lastly, the appellant argues that the verdict is unsafe and
    unreasonable.

[5]

We would not give effect to these grounds of appeal.

Discussion

(1)

The Similar Fact Evidence

[6]

The appellants principal submission concerning the admission of the
    similar fact evidence turns on the issue of collusion. He submits that the
    trial judge erred in finding that the Crown had met its burden of showing, on a
    balance of probabilities, that the evidence of the similar fact witnesses was
    not tainted by collusion.

[7]

On this issue, the Crown conceded the evidence was sufficient to
    establish an air of reality respecting potential collusion, and the defence
    conceded that there was no direct evidence of collusion and no evidence of
    deliberate concoction by either witness. While counsel sought to blunt the
    defence concessions in oral argument, on our view of the record the trial judge
    was entitled to proceed on the basis he did.

[8]

In conducting his admissibility analysis, the trial judge considered and
    applied the relevant legal principles relating to collusion in the similar fact
    context, as canvassed in
R. v. Dorsey
, 2012 ONCA 185, 289 O.A.C. 118,
    at para. 26;
R. v. C.B.
(2003), 167 O.A.C. 264 (Ont. C.A.) at paras.
    36, 39 and 40; and
R. v. Shearing,
2002 SCC 58, [2002] 3 S.C.R. 33, at
    para. 44. In particular, he noted the following passage from this Courts
    decision in
C.B.
, at para. 40:

Collusion can arise both from a deliberate agreement to concoct
    evidence as well as from communication among witnesses that can have the
    effect, whether consciously or unconsciously, of colouring and tailoring their
    descriptions of the impugned events.

[9]

The trial judge was alive to the appellants argument that the facts
    lending an air of reality to collusion could  and, in this case, did  rise to
    the level of inadvertent or unconscious collusion or collaboration. He dealt
    with this argument directly, in particular by addressing the four primary
    points relied on by the defence as the basis for collusion, namely:

(i) that the two witnesses had been
    told by the complainants step-mother (the appellants daughter) what had
    allegedly happened to the complainant before they went to the police;

(ii) both witnesses were at the
    preliminary hearing and heard the complainants testimony;

(iii) both witnesses were told by a
    private investigator, hired by the complainants father in connection with the
    complaint and a civil suit against the appellant, that if they had any evidence
    to disclose it would help the complainant, and that both gave very similar and
    very generic statements to the investigator; and

(iv) that the complainants
    step-mother had told them that if they disclosed what had happened to them, it
    would help the complainant.

[10]

The appellant submits that, in spite of these concerns, the trial judge
    subjected them to little or no analysis. We disagree. The trial judge conducted
    a very thorough analysis of the evidence, including that of the two similar
    fact witnesses. He found that they gave their evidence in a straightforward
    manner, with few inconsistencies, and that their evidence was reliable and
    capable of belief. Referring to
Shearing
, at para. 44, he recognized
    there was a possibility that by the sharing of the stories with one another
    the witnesses may have intentionally or accidentally allowed themselves to
    modify their stories to make their testimony seem more similar. He concluded,
    however, that the evidence did not go beyond mere possibility or opportunity in
    this case. He was satisfied, for purposes of the threshold admissibility
    analysis, that the Crown had shown on a balance of probabilities that the
    proffered evidence was not tainted by collusion.

[11]

The appellant effectively urges us to re-assess the evidence and arrive
    at a different conclusion. We see no basis for doing so. In our view, the trial
    judge properly exercised his important gatekeeper role. He examined the
    evidence and found the witnesses credible and reliable. He applied the relevant
    legal principles. His decision regarding the collusion issue is entitled to
    deference on appeal

[12]

In other respects, the trial judge very carefully reviewed and applied
    the relevant principles for the admission of similar fact evidence, generally,
    as set out in
R v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras.
    104-112. He was satisfied that the probative value of the proffered evidence
    outweighed its potential prejudice and that the witnesses had not colluded
    together in respect of their testimony. He found that the relevant criteria had
    been met, and ruled the similar fact evidence admissible.

[13]

We would not interfere with his decision to admit the similar fact
    evidence.

(2)

Demeanour and the Resolution of Material Inconsistencies

[14]

The appellant complains that the trial judge did not deal properly with
    the many inconsistencies in the complainants testimony and, in addition, that
    he relied too heavily on her demeanour in making the assessment he did.

[15]

We are not persuaded by this submission.

[16]

The trial judge did not deal with all the alleged inconsistencies in the
    complainants testimony, but only with those he considered could be material,
    individually or cumulatively. The appellant concedes that he was entitled to
    take this approach.

[17]

In a detailed analysis, the trial judge listed and addressed a total of
    14 alleged inconsistencies  three respecting the pull-out couch incident,
    six respecting the sitting on the lap incident, and five respecting the
    upstairs watching the movie incident. He carefully reviewed the circumstances
    surrounding each inconsistency, including the complainants testimony and other
    relevant evidence, finding them to be of varying degrees of significance.

[18]

He then turned to an assessment of the credibility and reliability of
    the complainants testimony. Counsel argued that the trial judge placed too
    much reliance on his assessment of the complainants demeanour and that he
    compounded this error by considering the inconsistencies in the complainants
    testimony only in the context of the reliability analysis and not as part of
    the credibility analysis as well.

[19]

We agree the trial judge did place some weight on the way in which the
    complainant acted and to how she responded to questions. For example, she
    readily acknowledged when she had made mistakes or had made inconsistent
    comments. Several of her statements struck the trial judge as [being]
    particularly honest and frank. The trial judge was entitled to take these
    factors into consideration, particularly given the age of the complainant (approximately
    nine years of age at the time of the incidents; thirteen when she testified).

[20]

We do not agree that he placed too much emphasis on demeanour, however. He
    accepted that credibility could not be determined solely on the basis of
    demeanour. He set out several other objective reasons for accepting her
    evidence, and did not base his findings solely on her demeanour. Contrary to
    the appellants submission, he did deal with the issue of prior inconsistent
    statements in his specific analysis of credibility; in any event, we do not
    think anything turns on the argument that he left inconsistencies to the
    reliability portion of his analysis in these circumstances.

[21]

The trial judge believed the complainant, notwithstanding the
    inconsistencies he identified, and gave cogent reasons for doing so. The weight
    to be afforded to her evidence and its various imperfections was for him to
    decide. We see no error in this regard.

(3)

The Trial Judge Did Not Draw an Impermissible Inference of Guilt

[22]

The trial judge noted that his disbelief of the appellants evidence 
    and that of his wife  as to the sleeping arrangements on the couch raised
    suspicions as to whether there were other explanations for the appellants
    sleeping between the complainant and her sister. However, we are not satisfied that
    the trial judge went further, and used his disbelief of the accuseds testimony
    as proof that the accused fabricated a story in an effort to avoid culpability,
    and, therefore, to jump to a finding of guilt.

[23]

We reject this ground of appeal.

(4)

The Verdict Was Not Unsafe or Unreasonable

[24]

It follows from the foregoing that there was ample evidence upon which a
    trier of fact, properly instructed, could have found the appellant guilty on
    the totality of the evidence. This ground of appeal must also fail.

Disposition

[25]

For the foregoing reasons, the appeal is dismissed.

Released: November 27, 2017

John Laskin J.A.

K. Feldman J.A.

R.A. Blair J.A.





[1]
At sentencing, the sexual assault count was conditionally stayed in accordance
    with the rule against multiple convictions.
Although the
    appellant sought leave to appeal sentence in his Notice of Appeal, the sentence
    appeal was not pursued.


