



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. S.F., 2021 ONCA 716

DATE: 20211012

DOCKET: C67341

Fairburn A.C.J.O., Doherty and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.F.

Appellant

Nate Jackson, for the appellant

Andrew Hotke, for the respondent

Heard and released orally: October 6, 2021 by
    video conference

On appeal from the conviction entered on May 6, 2019 by
    Justice E. B. Minden of the Superior Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior Court of Justice sitting
    without a jury, the appellant was found guilty of sexual assault and sexual
    interference. A conviction was entered on the count of sexual interference. A
    stay on the sexual assault. The trial judge imposed a sentence of imprisonment
    of six and one-half years.

[2]

The appellant appeals his conviction.

The Background Facts

[3]

The appellant is the biological father of the complainant. For the first
    eight years of the complainants life, no real contact between the appellant and
    the complainant occurred despite an agreement that permitted the appellant
    access on weekends.

[4]

During a period of about eighteen months after the complainant turned
    eight, the appellant exercised his right of access. In large measure, this meant
    that the complainant spent several weekends at the home in which the appellant
    lived with his wife and daughter. Their home was some distance away from where
    the complainant resided with his mother, the appellants former partner.

[5]

The complainant gave evidence of three discrete occasions on which he
    was sexually assaulted by the appellant. Two occurred in the appellants home
    and the third in the appellants truck. The assaults continued until the
    complainants tenth birthday when the access visits terminated. The reasons for
    the cessation of the visits varied. The complainant gave evidence that on the
    ride home with the appellant on the weekend of his tenth birthday, he warned
    the appellant that if the abuse did not stop, he would tell somebody about that
    abuse. The appellant claimed that the visits concluded because of the constant
    bickering between the complainants mother and himself.

[6]

The complainant first disclosed the abuse to a close friend when he was
    in grade nine, then to his girlfriend the summer after he had completed grade
    ten. In 2016, at the suggestion of his close friend to whom he had first
    disclosed, he told his grandmother who relayed what he said to the
    complainants mother. The complainants mother contacted the police and the
    investigation began, leading to the charges on which the appellant was tried.

The Grounds of Appeal

[7]

The appellant advances three grounds of appeal. He submits that the trial
    judge erred:


i.

by making impermissible use of the complainants prior consistent
    statements to confirm the truth of the complainants sworn allegations;


ii.

by misapprehending the evidence of the complainant concerning the
    disclosure of his allegation to a high school counsellor; and


iii.

by applying an uneven standard of scrutiny to the evidence of the
    complainant, on one hand, and the appellant, on the other.

[8]

In our view none of these grounds can prevail.

The Prior Consistent Statements

[9]

First, prior consistent statements.

[10]

At trial, the Crown adduced evidence of three separate disclosures by
    the complainant. The sources of this evidence were:


i.

the complainant himself;


ii.

a close friend and fellow student of the complainant.


iii.

the complainants grandmother; and


iv.

the complainants former girlfriend, as well as fellow student.

[11]

The questions asked and answers given by the complainant, his close friend
    and fellow grade-nine student, and his grandmother were focussed upon the fact
    of and circumstances surrounding the disclosure, not the content of what was
    disclosed. The former girlfriend did not testify. A transcript of her police
    statement was entered on consent as an exhibit at trial. There, she confirmed
    the timing and circumstances of the disclosure and made one brief reference to
    the nature of the conduct alleged, but not the details of where and when it
    occurred.

[12]

The trial Crown made it clear in examination of the disclosure witnesses
    that they did not seek any details of the nature of the abuse, only the
    circumstances of the disclosure.

[13]

The appellant does not suggest, nor could he, that this disclosure
    evidence was inadmissible at trial. His complaint is that the trial judge made
    improper use of the evidence to confirm the complainants account of relevant
    events and, by reason of consistency, enhance the reliability of his evidence.

[14]

This ground of appeal fails for essentially three reasons.

[15]

In his comprehensive reasons for judgment, the trial judge correctly
    articulated the rule governing the admissibility of evidence of prior
    consistent statements, their exceptions, and the limited use, as a trier of
    fact, he could make of that evidence. The trial judge made it clear that the
    statements could not be used to prove the truth of their contents. or to
    enhance the credibility of the complainant or the reliability of his testimony.
    Said differently, the trial judge approached this evidence on the basis of the
    proper legal principles.

[16]

A fair reading of the trial judges reasons reveals no departure from
    these applicable legal principles. Nothing said or left unsaid by the trial
    judge displays any improper use of this evidence.

[17]

Finally, unlike some cases involving disclosure of allegations of sexual
    misconduct, this was not a case in which the details of the disclosure were
    elicited in evidence. In such cases, especially with a lay trier of fact, left
    untutored about limitations on the use of this evidence, the risk of misuse may
    be enhanced. Not so here with a trier of fact schooled in permitted and
    prohibited uses and faithful to precedent.

Misapprehension of Evidence

[18]

The second ground of appeal alleges that the trial judge misapprehended
    the complainants evidence about whether he disclosed the sexual assault by the
    appellant to a counsellor at school. There were no school records of any such
    disclosure.

[19]

At the preliminary inquiry, the complainant testified that he had spoken
    to a counsellor at school about being sexually abused. In cross-examination at
    trial, his answer was that he thought he had spoken to a counsellor for a
    brief little time at school. Cross-examining counsel then suggested that the
    complainant made no such complaint. The complainant explained: um, like I said
    I cant tell you at this point, but I stand by what I said in this - in the
    transcript here, so I would have, yes.

[20]

In his reasons for judgment, the trial judge concluded that the
    complainant provided his then best current memory on the disclosure issue at
    the preliminary inquiry, but that at trial he was no longer certain about the
    issue. The trial judge then went on to say, that even if the complainant did
    speak to a counsellor at school, the absence of such records did not give rise
    to any credibility or reliability concerns.

[21]

We are not satisfied, that read in their entirety, the reasons of the
    trial judge reflect any misapprehension of evidence. At trial, the complainant
    could not recall whether he had told a school counsellor about the abuse. That
    was his memory at trial. He accepted that he had said at the preliminary inquiry
    that he had spoken to a counsellor. But at trial he could not recall one way or
    the other whether he had, in fact, done so. The trial judges conclusion on
    this issue involved no misapprehension of the evidence.

[22]

In any event, the trial judge went on to determine whether the absence
    of a record of any disclosure to a counsellor, contrary to the complainants
    recollection of disclosure at the preliminary inquiry, would have any impact on
    the credibility of the complainant or the reliability of his evidence. The
    trial judge concluded that it had no such effect on his assessment.

[23]

This ground of appeal fails.

Uneven Scrutiny

[24]

The final ground of appeal alleges that the trial judge applied a higher
    or stricter level of scrutiny to the evidence of the defence than he applied to
    the evidence adduced by the Crown.

[25]

As this court has frequently pointed out, this is an argument that is
    difficult to advance successfully. It is not established by the simple fact
    that the judge accepted the evidence of some witnesses, but not the testimony
    of others. Or made some findings of fact, but not others. Or could have made
    different findings of fact or drawn different inferences. It is often, as here,
    little more than a thinly veiled attempt to relitigate factual determinations
    made at trial in the absence of any errors in principle, palpable and
    overriding errors in findings of fact, or misapprehensions of evidence. The thorough
    reasons of the trial judge afford no basis for any claim of uneven scrutiny.

[26]

In oral argument, the appellant alleged that the trial judge erred in
    characterizing the appellants testimony in the following terms:

For much of his testimony I found
    S.F. to be a scripted, stubborn, intransigent and unimpressive witness. At
    times he was careless, if not reckless, with the truth. It seemed to me, that
    he repeatedly attempted to act as an advocate in his own cause rather than as a
    witness sincerely trying to be accurate and honest.

[27]

The appellant specifically objects to the trial judges reference to him
    as behaving in the witness stand as an advocate in his own cause. It is the
    obligation of a trial judge to consider, among other things, the manner in
    which witnesses, including the accused, give their evidence. We read the
    reasons of the trial judge as indicating that he viewed the appellant as more
    interested in advancing his own position than answering the questions put
    accurately and honestly. There is nothing wrong with what the trial judge said.

[28]

The appeal is dismissed.

Fairburn A.C.J.O.

Doherty J.A.

David Watt J.A.


