



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.W.M., 2020 ONCA 831

DATE: 20201222

DOCKET: C67264

Strathy C.J.O., Rouleau and
    Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D. W. M.

Appellant

Andrew Furgiuele and Cara Barbisan, for
    the appellant

Eric Taylor, for the respondent

Heard: November 27, 2020 by
    video conference

On appeal from
    the convictions entered by Justice Ian S. McMillan of the Superior Court of
    Justice on February 25, 2019, with reasons reported at 2019 ONSC 1130.

REASONS FOR DECISION

A.

OVERVIEW

[1]

The appellant appeals his convictions for sexual
    assault, sexual interference, invitation to sexual touching, sexual assault
    with a weapon, and uttering a threat to cause bodily harm, in relation to the
    daughter of his former common law partner. The events were alleged to have
    occurred on a regular basis from 1991 to 2003, when the complainant was between
    the ages of 5 and 16.

[2]

The abuse allegedly started with sexual
    touching, and escalated over the years to oral sex and intercourse. It
    continued until the complainant moved out of her mothers house at age 16, but
    was not reported to the police until 2016.

[3]

There were only three witnesses at trial: the
    arresting officer, the complainant, and the appellant. The evidence of the
    arresting officer was largely peripheral, except on one issue, discussed below.

[4]

The appeal focuses on three errors that the
    trial judge purportedly made in his assessment of the appellants evidence. For
    the reasons that follow, we dismiss the appeal.

B.

The evidence at trial

[5]

It is unnecessary to review all the
    complainants evidence for the purpose of these reasons. The complainants
    evidence was, on its face, detailed, explicit and candid.

[6]

The complainant testified that the appellant
    started to touch her sexually when she was 5 years old. The abuse progressed to
    digital penetration around the age of eight, and then to oral sex. The
    complainant described how the appellant took [her] virginity with a wooden
    stick when she was 12 years old. She said he had given her a puppy as a
    birthday present, which she regarded as a bribe for what was to come. She
    recalled that the appellant had a wooden stick, sanded and shaped like a penis,
    which he lubricated and inserted into her vagina to break her hymen. After this
    incident, intercourse began on a regular basis. She spoke about the first such
    occasion in detail. She also recounted two other specific instances of
    intercourse, giving details as to the locations and the positions employed by
    the appellant.

[7]

The complainant described an incident, around
    the age of 13, when the appellant put peanut butter on her clitoris and had her
    dog lick it off.

[8]

The complainant testified that there were
    frequent acts of intercourse between the age of 12 or 13 and the age of 15,
    when she began menstruating. She said that she eventually got used to the
    appellants sexual advances, as [i]t started feeling like a job. She almost
    looked forward to it because the appellant would reward her with spending money
    and exciting toys, like a go-cart.

[9]

The appellant testified. While he corroborated
    peripheral details of the complainants evidence, he denied ever having touched
    her in a sexually inappropriate way.

C.

THE TRIAL JUDGES REASONS

[10]

The trial judge undertook a thorough and objective review of the
    evidence by looking first at the complainants testimony and then the
    appellants. At that stage, he made no assessment of the evidence.

[11]

He then turned to his analysis. He
    instructed himself on the application of the presumption of
innocence, the burden of proof, and the requirement of proof beyond
    a reasonable doubt. The trial judge noted that he had to be sure that the
    appellant committed the offences, and only after considering all of the
    evidence and not simply preferring one sides version over that of the other.
    He stated that since the appellant had elected to testify, making this a she
    said/he said case with demonstrably opposed versions of events, he was obliged
    to follow the approach established in
R. v. W.(D.)
, [1991] 1 S.C.R.
    742. He also identified the potential for frailties in a case that involved
    events from 28 years earlier, and that depended on an adult complainant giving
    evidence about her childhood experiences. The trial judge cautioned himself
    about stereotypical thinking. He observed that [d]emeanour, while a relevant
    consideration, ought not to be over-emphasized and [a]n apparent lack of
    motive to fabricate ought not to influence shifting the burden of proof to the
    accused. He recognized that in the context of prosecuting a historical sexual
    assault case, it was important to distinguish between credibility and
    reliability when assessing the evidence of the complainant and the appellant.

[12]

The trial judge observed that the appellants evidence corroborated
    the complainants evidence on peripheral matters. The trial judge noted that in
    the appellants examination-in-chief, he asserted denials of sexually
    inappropriate touching in the broadest of terms and, when asked about
    specific acts of sexual misconduct, [t]he denials were brief and always
    limited to either No or I did not or I did no such thing or No, I did
    not. The trial judge remarked that the appellant answered in the same
    limited and structured manner in response to allegations of impropriety put to
    him in cross-examination by the Crown.

[13]

The trial judge identified three aspects of the appellants evidence
    that raised concerns for him. These are discussed in the analysis section
    below.

[14]

The trial judge
gave detailed reasons for his acceptance of the
    complainants evidence.
He found the complainant to be
    compelling in respect to both her credibility and the reliability of her
    evidence. It was provided in a straightforward, forthright and unembellished
    manner, worthy of belief. She was honest, truthful and sincere.

[15]

He noted that the complainants evidence was
    responsive to questions put to her by Crown and defence counsel. The
    complainant was candid and notably honest even when her evidence didnt depict
    her in a positive moral light. There was no inconsistency between her evidence
    at trial, her initial statement to police, and her evidence and
    cross-examination at the preliminary hearing. Nor was there evidence of
    partiality, malice or bias against the appellant. Some of her testimony was
    detailed and specific, and she was able to relate certain incidents of abuse to
    other events in her life.

[16]

After setting out his assessment of the evidence of the appellant
    and the complainant, the trial judge stated his conclusion:

In considering the totality of the evidence, I
    have particularized my considered and reasoned acceptance, beyond a reasonable
    doubt, of the truth of the complainants conflicting credible and reliable
    evidence sufficient to establish the accuseds guilt beyond a reasonable
    doubt.

[17]

He therefore convicted the appellant on the counts identified above.

D.

analysis

[18]

The appellant submits that the trial judge erred in his assessment
    of what he described as three facets of the accuseds evidence that arouse
    concern. The appellant argues that these errors led to the rejection of his
    evidence and that a new trial is required. We address each of them in turn.

(1)

Childrens Aid Society (CAS) Investigation

[19]

The complainant testified that when she was 5 or
    6 years old and living on Cooper Street, she told another child that the
    appellant had touched her inappropriately. She said that this disclosure
    resulted in the school principal contacting the CAS, and the police coming to
    the family home, speaking to her parents, and taking her to the CAS offices to
    be interviewed. The complainant recalled that the appellant spoke to her before
    she went to the CAS. He was crying as he told her that she should not say
    anything about what had happened because he did not want to go to jail. She
    described being at the CAS premises and being afraid that she would be taken
    away from her family. She told the CAS that she had not been touched by her
    stepfather and that she had been misunderstood. The matter was subsequently
    dropped. The complainant testified that the majority of the sexual acts of the
    appellant occurred after this incident.

[20]

In cross-examination concerning the CAS
    incident, the complainant agreed with defence counsels suggestion that if the
    event she described had happened, it would be obvious that her mother and the
    appellant would have been aware that the authorities were involved.

[21]

The appellant was asked in examination-in-chief
    whether he remembered an incident involving the police and CAS when the family
    lived on Cooper Street and when the complainant was 5 or 6 years old. He
    replied: No, I dont recall anything like that. It could have happened, I have
    no idea, maybe I wasnt there, [the complainants mother] never said nothing to
    me about it.

[22]

The Crown pursued this issue in
    cross-examination. The following exchange took place:

Q.  And, sir, again this morning,
    [appellants trial counsel] asked you about whether or not you recall an
    incident which the Childrens Aid Society as well as the police became involved
    at the house on Cooper Street?

A. I know nothing of that. Nothing was ever
    said to me about that.

Q. Okay. Your evidence was, no, I dont recall
    anything like that. Maybe I wasnt there.

A. I might have been gone because nobody
    mentioned anything to me about that incident.

Q. Okay. Youd agree that would be a pretty
    significant incident?

A. Well, I didnt know anything about it.

Q. Okay. Youd agree though its a pretty
    serious thing when the Childrens Aid Society and police come to your house and
    investigate an allegation of abuse.

A. I would say.

Q. Okay. But yet you have no independent
    recollection of that happening?

A. I do not have any recollection of any of
    that happening there at the house.

[23]

The appellant denied having asked the complainant
    to lie to the police or having threatened her.

[24]

There was no
    independent evidence that a report had been made to the CAS. The arresting
    police officer testified that he had located a police report from 1995 (when
    the complainant would have been about 9 years old), but neither he nor any of
    the other witnesses gave evidence about the content of the report, and it was
    not made an exhibit at trial. The trial judge observed that he could not
    speculate whether the police report related to this incident. The complainants
    mother, who lived in British Columbia, was not a witness at trial, although the
    Crown had brought an application to permit her to testify by closed circuit
    video. The application was opposed by the defence and was dismissed.

[25]

In his reasons, the trial
    judge identified the appellants evidence on this issue and said that [i]f
    there was such an investigation it is inconceivable that the accused would not
    have any recollection of it.

[26]

The appellant submits
    that the trial judge made inappropriate use of the CAS evidence. Without making
    a finding that the CAS investigation took place, the trial judge assumed that
    it did occur, and used the appellants inability to recall the incident to
    discount his evidence and detract from his credibility.

[27]

We do not accept this submission
. Both the complainant and the appellant
    testified that he was a stepfather figure to her, and that they had a close,
    father/daughter relationship. In this context, the appellants explanations for
    not being aware of the CAS incident made no sense: It could have happened 
    maybe I wasnt there and I might have been gone because nobody mentioned
    anything to me about that incident.

[28]

Sometimes, I dont
    remember, it could have happened is an appropriate and understandable answer
    for a witness. It is heard in courtrooms every day. But there are some events
    that are memorable whether the witness was present or not, because it was bound
    to come to the witnesss attention.

[29]

If the police had come
    to the house and taken the complainant in a police car to the CAS, it stands to
    reason that the appellant would have heard about it, even if he were not there
    when it occurred. And if he had never heard about it, because it was fabricated
    by the complainant, the explanation he gave, it could have happened  maybe I
    wasnt there, was completely illogical. The trial judge was entitled to treat
    his illogical answer as raising concern.

(2)

The appellants denials of sexual activity

[30]

The trial judge also
    expressed concern about the manner in which the appellant denied his
    wrongdoing. He stated:

His responses in that regard appeared
    contrived, guarded and apathetic. Nonetheless, I must be mindful that both
    general and specific denials, of necessity, would be lacking in detail and that
    the burden of proof never shifts to the accused. Also, that demeanour, while
    relevant, ought not to be unduly relied upon in assessing credibility. Although
    his denials were plausible, the delivery thereof did not constitute compelling
    evidence on the part of the accused that he was not guilty. The accused
    struggled in general with dates and details. There were a few inconsistencies
    such as [the complainants mother] not working at all or ever, but he later
    acknowledged that she was working when they met. These examples raised by the
    Crown were not, in my view, intended to mislead. Other than set out above, his
    evidence was generally ineffective, or at best, neutral.

[31]

The appellant points
    out that he repeatedly denied the allegations that were put to him, giving
    simple answers to questions and not wavering throughout his testimony. The
    appellant asserts that there was no reason for the trial judge to fault the
    nature and delivery of his denials.

[32]

We do not see the trial
    judges reasons as indicating that he made improper use of the appellants
    demeanour when assessing his credibility. The trial judge noted that denials
    would necessarily be lacking in detail, that the burden never shifts to the
    accused, and that undue reliance should not be placed on demeanour. In the
    trial judges words, the appellants denials were plausible, but they were
    not compelling. Bearing in mind the requirements of
W.D.
, we read
    the trial judge as saying that the appellants denials were, at best, of
    neutral value and did not give rise to a reasonable doubt.

(3)

The appellants failure to address specific allegations

[33]

The third concern
    expressed by the trial judge was the appellants failure to address, in his
    evidence, two of the three specific acts of intercourse identified by the
    complainant.

[34]

The appellant points
    out that he specifically denied having touched the complainant inappropriately
    at the house where the two acts of intercourse took place. According to the
    appellant, he denied all sexual misconduct and had no obligation to deny
    specific acts that were not put to him by either his lawyer or the Crown.

[35]

This is accurate. The
    appellant denied any improper conduct at the location where the acts in
    question were alleged to have occurred. He had no obligation to respond to
    allegations concerning specific incidents, particularly when they were not put
    to him by either his own counsel or the Crown.

[36]

That being said, the
    trial judge simply stated that [t]he accused did not address those two
    allegations in his evidence by way of denial or otherwise. That was factually
    correct. Beyond identifying this as something that arouse[d] concern, the
    trial judge did not expressly make any use of the evidence.

[37]

This is not a case like
R. v. A.K.
, 2020 ONCA 435. There, this court allowed an appeal
    because the trial judge did not rest the conviction on the complainants
    evidence  she rested it, in part, on her rejection of the accuseds evidence.
    This court found that the trial judge relied on factors that could not
    reasonably have led to the rejection of the appellants evidence. This court
    also determined that the trial judges reliance on those factors must have
    played a role in her ultimate conclusion that she did not believe the accused
    and that his evidence did not leave her with a reasonable doubt.

[38]

In our view, the trial judges observations
    on the appellants failure to address two of the three specific allegations
did not result in a flawed credibility analysis or an erroneous
    application of the principles of
R. v. W.(D)
.
The trial judge made it clear that having considered
    the totality of the evidence, he was convinced of the appellants guilt beyond
    a reasonable doubt because he accepted the complainants credible and reliable
    testimony.

[39]

This court has
    acknowledged that a conviction may flow from a considered and reasoned
    acceptance, beyond a reasonable doubt of the complainants evidence:
R. v. A.K.
,

at para. 27;
R. v. J.J.R.D.
(2006), 215 C.C.C. (3d) 252, at para. 53 (Ont. C.A.), leave to appeal refused,
    [2007] S.C.C.A. No. 69. That occurred in this case.

[40]

For these reasons, the
    appeal is dismissed.

G.R. Strathy C.J.O.

Paul Rouleau J.A.

S. Coroza J.A.


