WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a
    young person who has received an adult sentence;

(b) in a case where the information relates to a
    young person who has received a youth sentence for a violent offence and the
    youth justice court has ordered a lifting of the publication ban under
    subsection 75(2); and

(c) in a case where the publication of the
    information is made in the course of the administration of justice, if it is
    not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in subsection (1) may,
    after he or she attains the age of eighteen years, publish or cause to be
    published information that would identify him or her as having been dealt with
    under this Act or the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985, provided that he or she is not in custody pursuant to
    either Act at the time of the publication.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.

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.H., 2016 ONCA 569

DATE: 20160715

DOCKET: C58814

Feldman, Cronk and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.H.

Appellant

Jason Rabinovitch, for the appellant

Jessica Smith Joy, for the respondent

Heard: January 15, 2016

On appeal from the conviction entered on February 18,
    2014 and the sentence imposed on May 20, 2014 by Justice Marion L. Cohen of the
    Ontario Court of Justice.

Feldman J.A.:

[1]

The appellant, D.H., was convicted in Youth Justice Court of three
    counts of sexual assault, sexual interference, and invitation to sexual
    touching of his cousin, the complainant. The events were said to have occurred
    when the complainant was between the ages of 6 and 11 and the appellant was
    between 13 and 18. The complainant was 22 at the time of the trial, while the
    appellant was 30 years old. The appellant was sentenced to 6 months in custody
    followed by 3 months of community supervision, plus 18 months of probation. He
    appeals his convictions and sentence.

Facts

[2]

Three witnesses testified at the trial: the complainant, her mother and
    the appellant.

[3]

The parents of the complainant were separated when she was a baby, and
    on alternate weekends, beginning at about age one, she would sleep at the home
    where her father lived. During the relevant period, he lived with his mother,
    his sister, and his sisters son and infant daughter. The complainants grandmothers
    room was on the main floor. The appellant had a room in the basement, where
    there was also the only bathroom in the home that the family used, as well as a
    second room, where his mother and infant sister slept.

[4]

The complainant said that while she sometimes slept with her
    grandmother, most of the time she slept with the appellant in his room. She
    said that because she had a bed-wetting problem, she did not sleep with her
    grandmother. The appellant denied that the complainant ever slept in his bed
    with him or in his room. There was no other evidence on this issue. The trial
    judge concluded that, in light of the bed-wetting problem, it was reasonably
    possible that the complainant was consigned to the [appellants] bedroom to
    sleep.

[5]

The complainant testified that the first incident of sexual abuse
    occurred when she was about six years old and in senior kindergarten. She and
    the appellant were watching television in his bedroom on his bed. He removed
    her onepiece pyjama and the underwear she was wearing underneath. He started touching
    and rubbing her vagina. He also kissed her on the lips, but did not French kiss
    her. She said he was breathing very heavily because he had asthma. The incident
    ended when the grandmothers male friend came down the basement stairs to use
    the washroom and the appellant told the complainant to put her clothes back on.

[6]

Following this first incident, the complainant said that every time she went
    to her fathers house, the appellant would try something new. Sexual acts would
    occur repeatedly, including French kissing, touching her vagina, cunnilingus,
    analingus, fellatio and failed attempts at penetration with his penis. She said
    that the appellant would always take off her bottoms and leave on her top, that
    he did not wear a condom, and that he did not ejaculate. He called her baby,
    treated her like a girlfriend, and refused to stop when she told him to.

[7]

The complainant had an ongoing problem with bed-wetting, soiling
    herself, and smearing feces. The complainant testified that when she was 11,
    her mother repeatedly asked her why she did those things and what was wrong
    with her. She said this eventually led to her telling her mother about the
    sexual abuse. She said, D.H. is doing it to me, and although she did not give
    any details, her mother understood what she meant.

[8]

The mothers version was that when the complainant was 11 years old, she
    suspected from an incident where the complainant was playing under a blanket
    with her step-sister that the complainant had been abused by someone. The
    mother began to ask her about it. The complainant said that the mother never
    suggested inappropriate touching, while the mother said she asked the
    complainant directly whether anyone had touched her. Finally, after a number of
    weeks, the complainant responded, Yes, it had happened, and after being
    coaxed for the name, said it was the appellant.

[9]

The mother immediately called the appellants mother and told her, Your
    son molested my daughter, and, Your son touched my daughter. The complainants
    mother testified that she did not remember where the complainant was for the
    phone call. Although the mother said the call was not on speakerphone, she
    thought the complainant could have heard her repeat what was being said. The
    complainant testified the call was on speakerphone and that that was how she heard
    what was being said on the other end.

[10]

According to the complainants mother, the appellants mother was
    concerned for her own daughters safety, as well as about the effect of this
    revelation on the grandmother (her mother). According to the complainant, the
    appellants mother reacted with concern that the allegations would jeopardize
    the appellants imminent attendance at university.

[11]

The complainants mother said she then asked if the appellant was there
    and his mother gave him the phone. He acknowledged that he had touched her
    daughter; he said that he was just experimenting and that she could send the
    police because he knew what he had done was wrong. She asked him how he would
    feel, and he responded that a priest had done it to him. The complainants
    account of this part of the phone call was similar to her mothers, except she
    did not say that the appellant referred to calling the police, or specify that
    it had been a priest who had done something to him.

[12]

The complainants mother did not report the abuse to the police. She
    gave a number of explanations for this: she did not feel she had enough
    information to call the police, despite what the appellant had told her on the
    phone; she was discouraged by a colleague at work who said it was not enough;
    she did not think the police would do anything; she did not want the appellant
    to be hurt because he was family; and she thought both her daughter and the
    appellant should get counselling, which she told the appellants mother, but she
    knew that he did not get any counselling.

[13]

The complainants mother continued her relationship with the appellants
    mother. She never discussed the phone call with her daughter, but over the next
    ten years, pressed her for details of the abuse. However, the complainant did
    not disclose the details for many years, until sometime just before she went to
    the police in January 2012. According to the mother, the complainant also disclosed
    further details to her shortly before the trial.

[14]

The complainants mother also testified that when the complainant was in
    grade eight, after the disclosure of the sexual abuse and after the phone call,
    the mother held a birthday party where she invited the appellant and his
    mother. She explained that she did not think it would do any harm and that the appellants
    mother was still her friend and she did not hold anything against her. The
    mother testified that after the party, her daughter defecated in her clothes
    and smeared feces all over the stairs, but that this was the last time that
    happened.

[15]

The mother never took her daughter to the police, but left the decision whether
    to come forward up to her.

[16]

The complainant said that the first time she gave a detailed account of
    what happened was to the police in January 2012. She said she gave her mother
    details of the sexual abuse afterwards, not long before the trial.

[17]

The appellant testified and denied all the complainants allegations. He
    said he saw the complainant when she came on weekends, and while she sometimes
    slept in the basement in his mothers room, she did not sleep with him in his.
    He denied the phone conversation with the complainants mother. He also denied
    being at the birthday party described by the mother, and said he never saw the
    complainant again after she stopped coming to the house.

The Trial Judges Analysis

[18]

Defence counsel made a number of arguments to the trial judge. First,
    the appellant was straightforward and unshaken in his evidence, and he could do
    nothing but deny the historical allegations of events that were said to have
    spanned a long time period. Second, he submitted that the court should have
    significant concerns about the reliability of the Crowns evidence, given the complainants
    lack of disclosure for five years and her failure to complain to police for ten
    years.

[19]

Third, there was a lack of detail in the complainants description of
    the sexual acts, which were described generically. Fourth, there were
    discrepancies between the complainants statements to police and her testimony
    at trial, particularly with respect to the frequency of the sexual acts. Fifth,
    there were inconsistencies between the evidence of the complainant and her mother,
    such as whether the complainant cried when she was taken to her fathers on
    weekends or whether she was okay to go, as well as whether she stopped going at
    age 9 or age 11.

[20]

Sixth, the defence submitted the trial judge should not use the
    complainants very emotional manner of testifying to strengthen an otherwise
    weak Crown case. The complainant had great difficulty controlling her emotions
    while testifying at trial. There were repeated outbursts where she berated the
    appellant and his mother, who was in the courtroom. She described how unwell
    she was with Crohns disease and how the memories of the abuse and seeing the
    appellant in court made her sick. The trial judge described her manner as
    tormented.

[21]

The defence also submitted that the complainant had a reason to
    fabricate the allegations to her mother in order to respond to her mothers
    concerns about her bed-wetting, soiling, and the incident with her step-sister.

[22]

Finally, with respect to the phone call, the defence submitted that the
    appellant denied it, and that the mothers reasons for not calling the police
    after such a phone call were illogical and incredible.

[23]

The trial judge began her legal analysis and assessment of the evidence
    by first acknowledging the merit of the defence arguments, especially the
    difficulty an accused has in defending against allegations of historical sexual
    assault. She referred to the presumption of innocence and the burden of proof
    on the Crown to prove guilt beyond a reasonable doubt. She agreed that, in
    assessing the evidence of the complainant, she should not give too much weight
    to her demeanour as a witness. She also acknowledged the fact that there were
    inconsistencies between the complainants testimony and her mothers, and between
    what the complainant told the police and what she told the court. She further
    acknowledged that, in some cases, both the complainant and her mother could not
    recall dates or the complainants age at the relevant times.

[24]

After instructing herself on
R. v.
W. (D.)
, [1991] 1 S.C.R. 742
,
the trial
    judge first addressed the evidence of the appellant. She found that he was
    neither shaken in cross-examination nor inconsistent. However, relying on
R.
    v.
J.J.R.D.
(2006),

215 C.C.C. (3d) 252 (Ont. C.A.)
, she found that
    she did not believe the appellant, and that his evidence did not leave her with
    a reasonable doubt.

[25]

She then turned to an assessment of the complainants evidence, acknowledging
    that she was giving evidence as an adult of events that had occurred when she
    was a child. The trial judge further recognized the context of the
    complainants difficult childhood, where her mother worked two jobs and was
    separated from her father, and where the complainant had problems with
    bed-wetting and soiling herself, and slept at the foot of her mothers bed
    until she was 15.

[26]

In that context, the trial judge viewed the complainants difficulties
    remembering details of places and dates as peripheral matters that did not
    affect the acceptance of her evidence on the material points, which the trial
    judge found was consistent and unshaken. Those points were what happened the
    first time, the kinds of sexual acts, how they were performed, how the appellant
    behaved, and the details the complainant remembered that were not contradicted
    by the appellant.

[27]

The trial judge rejected the suggestion that the complainant had a
    motive to fabricate. She explained that finding in a sentence added as an
    amendment to the reasons: In arriving at that conclusion I have considered the
    quality of the relationship between the mother and daughter, as revealed in
    their testimony, the mothers disposition, her patience, her lack of animus,
    and the evidence of mother and daughter regarding how the disclosure occurred.

[28]

The trial judge also took into account the demeanour of the complainant while
    testifying, including her anger and torment, as well as her issues and
    disturbing behaviour as a child. The trial judge stated that, from that
    behaviour, one could draw the inference that the complainant had been
    experiencing abuse, although other inferences [were] possible. The trial
    judge stated that she considered this history as a factor in assessing the
    complainants credibility.

[29]

The trial judge then turned to the issue of the complainants
    reliability, given the fact that she was testifying as an adult about events
    that she said occurred in childhood. On the issue of the complainants
    reliability and the potential for contamination of evidence, the trial judge looked
    to the evidence of the mother. The trial judge noted that, like the complainant,
    she was vague or inconsistent on some details, such as dates and the age of the
    complainant at the relevant times, but the trial judge nonetheless found her to
    be credible and reliable on the material issues.

[30]

The trial judge found no evidence that the mothers questions had
    tainted the complainants evidence. She found the mothers inaction following
    the disclosure by her daughter and the appellants admission to her during the
    phone call to be consistent with a lack of animus towards the appellant, and
    also consistent with the complainants evidence that she did not give her
    mother any details of the sexual abuse. The trial judge explained that both the
    complainants and the appellants statements to the mother were general, so
    that the mother did not really know what had been done to her daughter.

[31]

The trial judge found the appellants admission on the phone to be
    confirmatory evidence. Although the appellant denied that the call took place,
    the trial judge believed the mother. The trial judge used what she viewed as
    the mothers extraordinary lack of animus towards the appellant and his
    family as indicative of her credibility regarding the phone call. She found nothing
    illogical or incredible about the mothers testimony that she continued to
    view the appellant and his mother as family, and that she did not want her
    daughter to be full of hatred.

Issues

[32]

The appellant submits the trial judge erred in law by failing to give
    effect to the third branch of
W. (D.)
by:

1.

failing to resolve material inconsistencies in the evidence on
    significant issues which could have raised a reasonable doubt, including:

a)

inconsistencies between the evidence of the complainant and of her
    mother;

b)

inconsistencies in the complainants versions of the frequency of the
    sexual abuse between her disclosure to the police and her evidence at trial;

2.

failing to give adequate reasons for drawing conclusions and inferences from
    the evidence of the mother and of the complainant that did not accord with the
    logic of the situation and were contrary to the evidence of the appellant; and

3.

relying on the complainants problems in childhood as evidence that she
    was sexually abused without expert evidence.

Analysis

1.

Failure to resolve material inconsistencies in the evidence on
    significant issues

[33]

The trial judge gave lengthy reasons for decision, including instructing
    herself on the burden of proof and the application of
W. (D.)
, and explaining
    why she found the complainant and her mother to be credible on what she identified
    as the material issues. It was only because she accepted their evidence that
    she rejected the evidence of the appellant, relying on this courts decision in
J.J.R.D.
, which states, at para. 53:

An outright rejection of an accuseds evidence based on a
    considered and reasoned acceptance beyond a reasonable doubt of the truth of
    conflicting credible evidence is as much an explanation for the rejection of an
    accuseds evidence as is a rejection based on a problem identified with the way
    the accused testified or the substance of the accuseds evidence.

[34]

A trial judges assessments of credibility are accorded very
    considerable deference on appeal, as long as the trial judge has sufficiently
    explained how significant discrepancies that could undermine credibility and
    reliability have been resolved. This court recently reiterated that principle
    in
R. v. M. (A.)
, 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 17-19:

[W]here a case turns largely on determinations
    of credibility, the sufficiency of reasons must be considered in light of the
    deference generally afforded to trial judges on credibility findings. It is
    rare for deficiencies in a trial judge's credibility analysis, as expressed in
    the reasons for judgment, to warrant appellate intervention:
Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11;
Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26.

Nevertheless, the failure of a trial judge to
    sufficiently articulate how credibility and reliability concerns are resolved
    may constitute reversible error:
Vuradin
, at
    para. 11;
Dinardo
, at para. 26;
R. v.
    Braich
, [2002] 1 S.C.R. 903, [2002] S.C.J. No. 29, 2002 SCC 27, at para.
    23. After all, an accused is entitled to know why the trial judge had no
    reasonable doubt about his or her guilt:
R. v. Gagnon
, [2006] 1 S.C.R. 621, [2006] S.C.J. No. 17, 2006 SCC 17, at para.
    21.

Similarly, we take it as self-evident that a
    legal error made in the assessment of credibility may displace the deference
    usually afforded to a trial judge's credibility assessment and may require
    appellate intervention.

[35]

While a trial judge is not required to resolve every
    inconsistency in the evidence, the trial judge should address and explain how
    she or he has resolved major inconsistencies in the evidence of material
    witnesses:
G. (M.)

(1994)
, 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 356;
R. v.
    Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31:
M.
    (A.)
, at para. 14. As the Supreme Court stated in

R. v. Dinardo
, at paras. 26-27, the failure to
    articulate how credibility concerns are resolved, particularly in the face of significant
    inconsistencies in a complainants testimony, may constitute reversible error,
    as an accused is entitled to know why the trial judge is left with no
    reasonable doubt.

a)

Inconsistencies
    between the evidence of the complainant and her mother

[36]

The appellant submits that although the trial judge acknowledged many of
    the inconsistencies between the evidence of the complainant and her mother with
    respect to the events that they both testified about, in accepting the evidence
    of both, she failed to resolve those inconsistencies or to explain how they
    factored into her conclusions.

[37]

One way the trial judge avoided the need to resolve some of the problems
    she perceived with the credibility of the complainants evidence, including
    when it conflicted with her mothers evidence, was by discounting them as referable
    to peripheral matters, as a trial judge is entitled to do:
R v. W. (R.)
, [1992] 2 S.C.R. 122, at pp. 134, 135-36.

[38]

One such matter was the complainants attitude
    when her mother took her to stay with her father and his family on weekends
    during the period of the abuse. The complainant testified that she cried every
    time she was dropped off at her fathers house and that she would say to her
    mother that she did not want to stay there. The mothers evidence was to the
    contrary. She said the complainant was fine going to her fathers house, never
    gave any indication she did not want to go, and did not ever cry or complain
    about it.

[39]

The trial judge dealt with this discrepancy by
    first finding that the mother corroborated much of the complainants childhood
    history of unhappiness and anger, frequent school moves, having no friends,
    blaming her mother, soiling her pants, and bed-wetting  although she was
    uncertain about the complainants age range for some of these behaviours. The
    trial judge then turned to the discrepancy between them about the complainants
    attitude with respect to going to stay at her fathers:

The mother did not, however, corroborate the
    complainants evidence that she cried when she had to go to her fathers house.
    She testified that the complainant gave her no reason to think anything was
    happening when she took her there. According to the mother, the complainant never
    resisted or cried, and seemed normal. She described the complainant as being
    outspoken, and she stated she was shocked the complainant hadnt told her
    about the abuse.

[40]

The trial judge did not expressly resolve this
    discrepancy or analyze its significance. She only dealt with it when assessing
    the credibility and reliability of the complainants evidence, where, after
    reviewing the difficulties she experienced during childhood, the trial judge asked
    rhetorically, Why would one conclude her evidence was unreliable because she
    remembers crying when her mother dropped her off at her cousins house, while her
    mother thought she seemed o.k. with it, and completely normal. The trial
    judge concluded that the complainants inconsistent or confused testimony on such
    peripheral matters did not prevent her from accepting the complainants
    evidence on the central events.

[41]

It appears that the trial judge was implicitly
    accepting the mothers version of this event by suggesting that the
    complainants recollection may have been unreliable because she was testifying
    as an adult about events during her very difficult childhood. However, if so,
    the trial judge provided no analysis as to why she concluded that the mothers
    memory was the correct one with respect to this particular event.

[42]

Furthermore, to characterize this as a
    peripheral matter was a misapprehension of the evidence. This was a significant
    issue in the narrative of the abuse time period and one of the few issues on
    which both the complainant and her mother were participating witnesses and
    about which they could testify directly. Nor could their evidence be reconciled:
    the complainant described a scene of crying and objecting to go  not just on
    one occasion, but every time  which the mother denied occurred at all.

[43]

If the complainant did in fact object to being
    left at her cousins house, that would have added credence to her allegations,
    but it would also have undermined the credibility of the mothers testimony. By
    implicitly accepting the mothers version, the trial judge avoided dealing with
    this issue with respect to her assessment of the mothers credibility. And by
    calling it a peripheral matter, even though it was part of the complainants narrative
    of the time of the abuse, the trial judge did not have to give a reason why she
    could rely on the complainants version of the abuse, but not on her
    contemporaneous reaction to it.

[44]

Another potentially significant area of
    inconsistency between the complainant and her mother was in how the disclosure
    occurred. The mother said that there was an occasion when the complainant was
    11, where she observed her under a blanket with her step-sister. The mother
    then became concerned that someone had done something to her daughter and began
    asking her if anyone had touched her inappropriately. She continued to ask for
    approximately six weeks until the complainant finally responded, Yes.  The
    mother then had to press her to find out who had done it, suspecting the
    step-brother or the mothers former boyfriend.

[45]

The mother indicated that about a couple of
    years before this incident, she had been asking her daughter about her problems
    with bed-wetting and soiling herself. However, after the incident with the
    step-sister, she was asking her if she had been touched.

[46]

The complainant, on the other hand, stated that
    her mother was asking her questions about her bed-wetting and defecating when
    she was 11. She said that it was in response to those questions that she
    finally acknowledged the abuse. She denied that her mother ever suggested that
    anyone had touched her inappropriately.

[47]

The trial judge referred to defence counsels
    argument that the complainant had a motive to fabricate in order to defend
    herself from her mothers questions regarding her bed-wetting and defecating.
    The trial judge found there was no motive to fabricate, relying in part on the
    evidence of both witnesses regarding how the disclosure had occurred. In so
    doing, she made no reference to the discrepancy in their accounts, and later in
    her reasons found that the mother and the complainant were roughly consistent
    about the general history of the complainants visits to the appellants home,
    about the complainants difficulties, including the bed-wetting and the
    soiling,
and about the circumstances of the complainants disclosure
,
    and the steps she did and did not take as a consequence (emphasis added). The
    trial judge also found there was no evidence that the mothers questions had
    tainted or contaminated the complainants evidence.

[48]

This characterization represents a failure by
    the trial judge to deal with the discrepancy in the two witnesses evidence regarding
    the disclosure. By not acknowledging the fact that, on the mothers account,
    she suggested to the daughter that she had been touched inappropriately, the
    trial judge failed to address the complainants possible motive to fabricate in
    the context of the mothers suggestion of the answer.

[49]

Also, by viewing the versions told by the two
    witnesses as roughly consistent, the trial judge failed to resolve the
    inconsistency or to consider its effect on the credibility and reliability of
    each of them, and therefore on the issue of reasonable doubt. See
R.
    v. Burnie
, 2013 ONCA 112, 294 C.C.C. (3d) 387, at para.
    48.

b)

Inconsistencies in the complainants versions given as an adult

[50]

Another issue that the trial judge labeled as
    peripheral was the complainants inconsistencies on the number of times she was
    abused by the appellant. In
R. v. H.S.B
.
, 2008 SCC 52, [2008] 3 SCR 32, at paras. 11, 14-15, the Supreme
    Court allowed that a trial judge may treat this issue as peripheral when assessing
    an adult witnesss credibility in the context of remembering events from
    childhood.

[51]

The trial judge described the complainants
    accounts of the frequency of the abuse as wildly varying. She described those
    accounts in the following two paragraphs of the reasons:

After this first incident, the complainant
    stated that It just got worse and worse. She said that every time the accused
    would try something new. She said the sexual acts occurred repeatedly, but gave
    inconsistent answers to questions about how many times she was sexually abused
    by the accused. In her testimony in chief, she stated that she went to the
    accuseds home every second weekend, from ages 6 until 11, and that It
    continuously happened every time I was there. In her video statement to the
    police the complainant said it happened ten times. She stated that every time
    the accused was home, every time she slept in his room, it would happen  day
    or night  whenever she was alone with him, and he had the chance. She stated
    it probably happened more than once in a day, and probably thirty times. When
    it was put to her, in cross examination, that over the numbers of weekends and
    years she stated the abuse occurred, it would have happened 120 times, she
    agreed that this was possible.

In her video statement to the police, and in
    her testimony, the complainant also gave wildly varying estimates of the
    frequency with which the various sex acts were performed by the accused. She
    stated that after the first time, he had me do a lot of stuff, and that this
    happened every time except the first time, almost every time, probably
    three or four times, two times, ten times, and random times throughout
    the years he was molesting me. Ultimately she testified that she lost track
    of how many times. It just happened repeatedly. I got used to it.

[52]

The trial judge acknowledged these
    inconsistencies in her analysis of the complainants credibility and
    reliability, but discounted them on two bases. First, the complainant had such
    a troubled childhood, she could not be expected to remember the exact number
    of times or the exact way in which the sexual abuse occurred. As an adult
    witness, she testified that she lost track of the number of times and just got
    used to it. The trial judge found these statements credible and explanatory.
    Second, the frequency of the abuse was a peripheral matter.

[53]

While this analysis follows the Supreme Court
    jurisprudence in assessing the evidence from the perspective of an adult
    recalling terrible events from her past, it takes no account of the
    complainants inconsistency in recounting the events to the police as an adult,
    then to the court the next year, going from abuse occurring 10 times to
    possibly 120 times, and the effect of this inconsistency on the credibility and
    reliability of her account in her evidence. As this court stated in
M.
    (A.)
, at para. 12, one of the most valuable means of
    assessing witness credibility is to examine the consistency between what the
    witness said in the witness box and what she has said on other occasions.

[54]

The complainant went to the police as an
    adult and reported her story. Although the trial judge was entitled to treat
    the frequency of the abuse as a peripheral matter in terms of an adult
    recalling events from childhood, the trial judge failed to also treat and
    assess the major inconsistency between the complainants report to the police
    and her trial evidence the next year about the number of times the sexual abuse
    occurred, as a prior inconsistent statement. She failed to consider how this
    significant change in the complainants memory should be viewed in the context
    of both her credibility and reliability in recounting the events in a formal
    context with legal consequences.

2.

Failure
    to adequately explain significant conclusions and inferences from the evidence
    of the complainant and of the mother that did not accord with the logic of the
    circumstances

[55]

The trial judge accepted the evidence of the
    complainant on the issue of where the complainant slept when she stayed at her
    fathers place on weekends, a critical issue of dispute between the complainant
    and the appellant. There was no other evidence on the issue. The complainant
    testified that she would not sleep with her grandmother because she wet her
    bed. The trial judge acknowledged that the sleeping arrangements were relevant
    in light of the appellants denial that the complainant ever slept with him.
    The trial judge concluded that, in light of the complainants bed-wetting problem,
    it was reasonably possible that the complainant was consigned to the accuseds
    bedroom to sleep.

[56]

This reasoning by the trial judge did not
    address the obvious issue with this conclusion  that the complainant also
    would have the bed-wetting problem in the appellants bed  and how a teenage
    boy would react to having a small girl wet his bed on a semi-regular basis. The
    other issue not considered by the trial judge was the likelihood of adults like
    the aunt and grandmother putting a young girl in the same bed as a teenage boy.

[57]

Again, it was open to the trial judge to make
    the finding she did, if she could explain her conclusion on the basis of the
    evidence before her. However, in light of the appellants denial, the trial
    judge was obliged to show that she considered the problems with the evidence,
    and explain how she decided to believe the complainant in the face of those
    problems.

[58]

The second important example of this problem
    with the trial judges analysis related to the evidence of the incriminating
    phone call. The trial judge accepted that the mother had a phone conversation
    with the appellant when he was 18, where he admitted that he sexually abused her
    daughter. The appellant denied it. The trial judge found the mothers evidence
    to be corroborative of the evidence of the complainant. It was obviously of
    critical importance.

[59]

The final branch of the trial judges analysis
    of the Crown case was her assessment of the evidence of the mother, and in
    particular, the mothers reaction to the disclosure of the abuse by her
    daughter and the immediate admission of guilt by the appellant.

[60]

In recounting the evidence of the witnesses, the
    trial judge described how, following the critical telephone call with the
    appellant, the mother did not immediately call the police. The mother gave
    several explanations for this. One was that she did not feel she had enough
    information to call the police, regardless of what the appellant had told her
    on the phone. She also felt that because the appellant was family, although he
    had already hurt her daughter, she did not want to hurt him. She thought the
    best way to deal with what had occurred was for both her daughter and the appellant
    to get counselling, although she testified that she knew he never did.

[61]

The trial judge found it [m]ost extraordinary
    of all that the mother did not end her relationship with her sister-in-law,
    the appellants mother, but remained friends with her and continued to talk to
    her.

[62]

Therefore, in her analysis of the credibility of
    the evidence of the mother, and in particular that the incriminating phone call
    with the appellant had taken place, despite his denial, the trial judge had to
    deal with the extraordinary reaction of the mother to the disclosure of the
    abuse of her daughter.

[63]

She found there was nothing in the evidence to
    suggest why the mother would fabricate her evidence. The trial judge reasoned
    that the mothers extraordinary lack of animus towards the appellant and his
    family was what gave her account credibility. She found nothing illogical or
    incredible about the mothers desire to maintain good relations with the
    appellant and his mother as family, or about the fact that she did not hate
    them and did not want her daughter to do so either.

[64]

With respect to the trial judge, this reasoning
    is conclusory and insufficient to explain her decision to accept this evidence.
    As she had observed earlier, the mothers reaction to the disclosure that her
    daughter had been sexually abused by her cousin was extraordinary. The mother
    failed to call the police to protect her 11-year-old daughter and to hold the
    appellant accountable. Her explanation that she did not think she had enough
    information to call the police when the appellant had confessed to her was
    illogical. She also invited the appellant to her home for a birthday party,
    knowing her daughter would be present and would have to face the person who she
    said had sexually abused her.

[65]

The trial judge did not explain how the mothers
    lack of animus  animus that one would normally expect from a mother against
    someone who had hurt her child in an egregious way  supported her credibility.
    That is, she did not explain the logic of using a reaction that one would not
    expect from a mother to bolster her credibility as a witness, rather than
    undermine it.

[66]

Although the trial judge was entitled to accept
    the evidence of the mother with respect to the phone call, in light of the
    appellants denial, it was incumbent on the trial judge to give a basis for her
    finding that bears scrutiny.

3.

Effect of
    the Crowns failure to call expert evidence

[67]

The appellant also submits that the trial judge
    erred by giving weight in her analysis to an inference of sexual abuse drawn
    from the complainants behavior in childhood  including bed-wetting, soiling
    herself and acting out  without expert evidence. The Crowns position is that
    the trial judge was careful not to draw this inference, but only used these
    behaviours as part of the complainants history in the assessment of her
    credibility.

[68]

A close reading of the reasons supports the
    position of the Crown that the trial judge acknowledged that an inference of
    abuse could be drawn from the complainants history, but that other inferences
    were also possible. The trial judge said: In this context the history is a
    factor to be weighed in assessing the complainants credibility, and I have
    taken it into account. I would not give effect to this ground of appeal.

Conclusion

[69]

In applying the burden of proof beyond a
    reasonable doubt and using the rule in
J.J.R.D.
, the trial judge rejected the testimony of the appellant and found
    it did not raise a reasonable doubt because she accepted as true the evidence
    of the complainant and her mother.

[70]

The trial judge was entitled to make those
    findings, as long as she gave adequate reasons that explained how she resolved material
    inconsistencies and discrepancies on significant matters in the evidence she
    accepted.

[71]

In my view, the totality of the errors by the
    trial judge in failing to resolve important discrepancies in the evidence, or
    failing to do so in a cogent manner where required, undermines the reliability
    of her analysis; it does not amount to a considered and reasoned acceptance
    beyond a reasonable doubt of the truth of the conflicting credible evidence of
    the Crown case, in accordance with
J.J.R.D
.
, and constitutes reversible error. See also
M. (A.)
, at paras. 18-19, 27.

[72]

I would allow the appeal, set aside the
    convictions and order a new trial. As a result, I have not addressed the
    sentence appeal.

Released: July 15, 2016 (K.F.)

K. Feldman J.A.

I agree. E.A. Cronk J.A.

I agree. L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R v. DaFonte, 2016 ONCA 532

DATE: 20160705

DOCKET: C59811

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gina DaFonte

Appellant

Timothy E. Breen, for the appellant

John McInnes, for the respondent

Heard: June 22, 2016

On appeal from the conviction entered and sentence
    imposed on December 3, 2014 by Justice Lesley M. Baldwin of the Ontario Court
    of Justice.

BROWN J.A.:

Overview

[1]

The appellant, Gina DaFonte, a lawyer, appeals
    from the trial judges finding that she was guilty of criminal contempt of
    court and the sentence imposed of a $500.00 fine. The appellant is a sole
    practitioner. She was called to the bar in 2005. The finding of contempt arose
    from the appellants failure to attend a court hearing made peremptory to her
    client, Ms. Tracy Fleming.

[2]

I would uphold the finding of contempt. However,
    I conclude the trial judge erred by failing to afford the appellant an
    opportunity to make submissions on sentence. As a result, I would set aside the
    conviction and the sentence of a fine and would substitute, by way of sanction
    for the finding of contempt, an absolute discharge, coupled with the referral
    of the appellant to the Law Society of Upper Canada for practice mentoring.

Chronology of Events

[3]

In January 2013, Ms. Fleming had entered guilty
    pleas to charges of assault against her husband and failure to comply with
    recognizance. When Ms. Fleming retained the appellant in July 2013, she was
    awaiting sentencing. Once retained, the appellant advised the Crown that an
    application to set aside the guilty pleas might be sought.

[4]

Ms. Fleming was represented by different counsel
    in matrimonial proceedings which involved custody issues. Following the
    appellants retainer, the matrimonial proceedings were adjourned to await the
    outcome of the application to set aside the guilty pleas.

[5]

That application initially was scheduled to be
    heard on October 4, 2013. It was adjourned to January 28, 2014 to enable the
    appellant to obtain the necessary transcripts. In December 2013, the appellant
    filed an application record.

[6]

On January 28, the appellant informed Crown
    counsel she could not attend due to illness. As matters transpired, the presiding
    judge also was ill. The application to set aside was adjourned to February 4.

[7]

The appellant did not attend court on February 4,
    nor did she inform her client or Crown counsel that she would not be attending.
    The application was put over to February 20.

[8]

On February 6, the Crown served and filed an
    application to secure case managements orders, with the application returnable on
    February 10.

[9]

The Crowns application was brought on before
    the trial judge on February 10. The appellant did not appear. The trial judge
    adjourned the matter to the following day. The appellant did appear at that
    time. The trial judge put over to Monday, March 10 the application to strike
    the pleas, and made the matter peremptory.

[10]

On March 10, Ms. Fleming appeared in court; the
    appellant did not. Court staff called the appellants contact number and spoke
    to her answering service. The service advised that the appellant was not
    answering her phone; the court staff left a message with the service for the
    appellant to call. The trial judge thereupon cited the appellant for contempt,
    and proceeded to dispose of the application to set aside the guilty pleas in
    the absence of the appellant.

[11]

The appellant called court staff at 3:35 p.m.
    and asked staff to convey her apologies to the court for not appearing.
    According to the record of that call prepared by court staff, the appellant
    advised that she has been extremely ill lately and has been bedridden and due
    to her illness misread her diary and did not realize that she was required for court
    today.

[12]

When her husband came home from work, the
    appellant went to a clinic where she was prescribed an antibiotic. In a few
    days, she was feeling better.

[13]

The appellant appeared before the trial judge on
    March 17 and apologized for her absence the previous week. The trial judge set
    a date for the contempt hearing.

[14]

The trial judge held the contempt hearing on
    August 20, 2014. The appellant appeared and testified, as did her husband.

[15]

The appellant testified that she had not been
    feeling well over the weekend before the hearing. On the morning of March 10,
    she felt fuzzy, confused, and disoriented. She did not realize it was Monday.
    It was only after she got out of bed in the afternoon and checked her cell
    phone did she see the messages that had been left by court staff and by Ms.
    Flemings family law counsel who informed the appellant that the trial judge
    had cited her for contempt.

[16]

The appellant again offered her apology to the
    court, and said she had taken steps to ensure she would not miss a court attendance
    again.

Reasons of the trial judge

[17]

The trial judge correctly identified the
    applicable test for criminal contempt of court as that set out by this court in
R. v. Glasner
(1994), 93 C.C.C. (3d) 226 (Ont. C.A.). In
Glasner
,
    this court stated, at p. 242, that the
actus reus
of criminal contempt
    is conduct which seriously interferes with or obstructs the administration of
    justice or which causes a serious risk of interference or obstruction. The
    fault requirement calls for deliberate or intentional conduct, or conduct
    which demonstrates indifference akin to recklessness: p. 244.

[18]

The trial judge found that the appellants
    failure to attend the March 10 hearing had seriously interfered with the
    administration of justice, delaying not only the application to strike the
    pleas, but also the related family court proceedings.

[19]

Although the trial judge accepted the appellant had
    not deliberately failed to attend court, she concluded the appellants conduct
    demonstrated reckless indifference to her obligations to the court and her
    client. The trial judge held that the appellants conduct went far beyond mere
    discourtesy or inconvenience and interfered with the courts authority and its
    ability to administer justice. She found the appellant guilty of criminal
    contempt.

[20]

The trial judge found the appellants apology
    did not purge her contempt, but was a mitigating factor concerning sanction. She
    fined the appellant $500 for her contempt. The trial judge also wrote that she
    would refer the matter to the Law Society for any supervision or other action
    they deem appropriate.

[21]

Appellants counsel advised that the Law Society
    has opened a file on the matter, but he was not aware of the details, save that
    the Law Societys investigation was in abeyance pending the disposition of this
    appeal.

Issues on the appeal

[22]

The appellant advances several grounds of
    appeal:

(i)

The trial judge erred in concluding the
mens
    rea
for contempt had been established because the reason for her failure
    to attend was an honest mistake;

(ii)

The trial judge misapprehended the evidence
    about the availability of the appellants telephone records;

(iii)

The trial judge erred in holding the appellants
    apology could not purge her contempt; and

(iv)

The trial judge erred in determining sentence
    without allowing the appellant an opportunity to make submissions.

Analysis: Appeal from the contempt finding

[23]

The first three grounds of appeal relate to the
    issue of whether the trial judge erred in finding that the
mens rea
for criminal contempt had been proven beyond a reasonable doubt.

[24]

First, the appellant submits her illness caused
    her to make an honest mistake about the date of the court hearing and an honest
    mistake is incompatible with the subjective knowledge required for
    recklessness. The appellant contends the trial judge never rejected her
    evidence that she had not realized she was supposed to be in court on the
    Monday.

[25]

I do not accept this submission. When the trial
    judges reasons are read in their entirety, it is clear she considered and
    rejected the appellants explanation of an honest mistake. The trial judge did
    not believe the appellants explanation that flu medication had so disoriented
    and confused her that she did not know what day of the week it was. The trial
    judge emphasized the strong prior warnings given by the court to the
    appellant about the need to bring the strike plea matter to a final conclusion
    and the peremptory nature of the March 10 hearing. She also held that the
    appellants evidence about her illness and attendance at the doctor late on the
    Monday afternoon did not explain her failure to check her schedule and attend
    to her obligations. The trial judge found the appellants excuse for
    non-attendance in court to be part of a pattern of unreasonable excuses. The
    appellant does not contend the trial judge made any palpable and overriding
    error in making those findings of fact.

[26]

I also do not accept the appellants submission
    that the trial judges unfavourable view of her credibility was informed, in
    part, by a misapprehension of the evidence about the availability of her
    telephone records and the cell phone used at the time by the appellants
    husband. The trial judge clearly understood the appellants critical evidence
    that on March 10, 2014 she did not see the messages on her cell phone from her
    answering service, the court staff, and Ms. Flemings family law counsel until
    mid-afternoon because she did not check her phone that day until that time.

[27]

Finally, the appellant argues the trial judge
    erred in holding that her apology could not purge her contempt, contrary to the
    decision of this court in
R. v. Martin
(1985), 19 C.C.C. (3d) 248
    (Ont. C.A.), at p. 253, that a sincere apology can purge contempt.

[28]

I do not accept this submission. A court hearing
    a contempt charge must consider the accuseds explanation, including any
    apology, and then determine on all of the evidence whether the case has been
    made out beyond a reasonable doubt:
Glasner
, at p. 244;
R. v.
    Devost
, 2010 ONCA 459, 256 C.C.C. (3d) 374, at para. 45. However, a judge
    is not obliged to accept an explanation or an apology:
Devost
, at para. 45. In the present case, the trial judge did not take the
    position that a sincere apology could not purge contempt. Instead, having
    rejected the appellants explanation that an illness prevented her from
    attending to her court obligations, the trial judge was not prepared to accept
    that an apology based on the appellants explanation that she was ill raised a
    reasonable doubt. That conclusion was open to the trial judge on the evidence
    before her.

[29]

Accordingly, I would dismiss the appellants
    appeal from the finding of contempt.

Analysis: Sentence Appeal

[30]

During the August 20, 2014 contempt hearing, the
    parties did not make any submissions about sentence. The record of the hearing
    discloses counsel proceeded on the basis that the only issue at the hearing was
    whether the appellant had committed criminal contempt. However, in her reasons
    for judgment, the trial judge immediately proceeded from making a finding of
    contempt to imposing the sanction of a fine. The trial judge then requested
    submissions from counsel on the amount of the fine.

[31]

The appellant submits the trial judge erred in
    determining sentence without allowing her an opportunity to make submissions.
    The respondent argues that the flexibility of the summary procedure for
    criminal contempt allows a judge to determine sentence without seeking
    submissions from the parties.

[32]

I accept the appellants submission. Other than
    in exceptional circumstances where an
instanter
summary proceeding is
    justified, the summary procedure for contempt is subject to the requirements of
    natural justice, which include affording the parties an opportunity to make
    representations about an appropriate sentence following a finding of contempt:
R.
    v. Arradi
, 2003 SCC 23, [2003] 1
    S.C.R. 280
, at para. 30. The trial judge erred by failing to give
    the appellant such an opportunity. In light of that error, it falls to this
    court to consider what sanction is fit in the circumstances.

[33]

At the hearing of the appeal, we invited counsel
    to provide further submissions on sentence. Counsel filed a joint letter
    stating that in the event the court dismissed the appeal against conviction,
    there is a basis to conclude that an absolute discharge is in the appellants
    best interests and not contrary to the public interest. The Crown does not
    oppose a discharge. Counsel also advised that should the court grant a
    discharge, the Crown would be content if the court simply mentioned the trial judges
    referral to the Law Society in its decision and allow the Law Society
    investigation to take its course.

[34]

The purpose of criminal contempt is to punish
    conduct calculated to bring the administration of justice by the courts into
    disrepute:
United Nurses of Alberta v. Attorney-General for Alberta
(1992), 71 C.C.C. (3d) 225 (S.C.C.), per Sopinka J., dissenting, at p. 230.
    Sentencing in criminal contempt cases operates to repair the depreciation of
    the authority of the court:
International Forest Products v. Kern
,
2001
    BCCA 48, 149 B.C.A.C. 18, at para. 20
.

[35]

As the trial judge recognized, a wide variety of
    possible sanctions are available to a judge who has found a lawyer in contempt
    for failing to attend a court hearing, including a warning, reprimand, referral
    to the Law Society, costs, or a deterrent fine.

[36]

Since 2010, formal protocols have existed
    between the Law Society and all levels of Ontario courts under which a judge
    who experiences misconduct by a lawyer can refer the lawyer to the Law Society to
    be mentored, rather than investigated, for misconduct.
[1]
According to the
    protocols, where a judge refers a lawyer for mentoring, the Law Society will
    arrange for a senior member of a professional organization, such as the
    Criminal Lawyers Association, to conduct a mentoring meeting with the lawyer
    to discuss the lawyers conduct and mentor the lawyer about the conduct in
    question. A judicial referral for mentoring does not constitute a complaint of
    professional misconduct, but a request by the court that the professional
    regulator provide the member with the assistance needed to address and correct
    inappropriate conduct.

[37]

It is in the long-term interests of the
    administration of justice that lawyers who do not appreciate the full extent of
    their obligations to the courts are afforded the opportunity for mentoring,
    correction and improvement.  The courts referral of a lawyer to the Law
    Society for mentoring provides a practical means by which to achieve that
    result.

[38]

Given the existence of the mentoring referral
    protocol between the courts and the Law Society, a judge should consider
    whether the circumstances of a particular case would make a referral to the Law
    Society for practice mentoring a more proportional and effective solution to a
    lawyers failure to attend a scheduled court hearing than would resorting to
    the judicial contempt power.

[39]

The appellant is a young lawyer; in March 2014,
    she had been in practice for just under 10 years. Although she leased space from
    a group of lawyers, she did not make use of any of the administrative services
    available through that chambers arrangement. She ran her practice out of her
    cellphone without putting in place the administrative and technological safety
    nets needed to meet her professional obligations. It is obvious that the
    appellant would benefit from assistance in organizing and conducting her
    professional practice.

[40]

In my view, the goal of repairing the
    depreciation of the authority of the court caused by the appellants failure to
    attend court on March 10, 2014, can be achieved by granting an absolute
    discharge, coupled with a referral to the Law Society for practice mentoring.
    Accordingly, I would set aside the conviction, the fine imposed by the trial
    judge, and the terms upon which she referred the appellant to the Law Society.
    In their place, I would grant an absolute discharge and refer the appellant to
    the Law Society for practice mentoring. To be clear, the referral is not a
    judicial complaint of professional misconduct against the appellant, but a
    request under the 2010 protocol that the Law Society provide the appellant with
    formal practice mentoring.

Disposition

[41]

For the reasons set out above, I would uphold the
    finding of contempt. However, I would set aside the conviction and sentence, including
    the terms of referral to the Law Society imposed by the trial judge. I would substitute
    an absolute discharge, coupled with the referral of the appellant to the Law
    Society for practice mentoring.

Released: July 5, 2016 (DD)

David Brown J.A.

I agree Doherty J.A.

I agree K. Feldman J.A.

[1]
The March 31, 2010 letter protocols are found on the website of the Law Society
    of Upper Canada, www.lsuc.on.ca, by searching Judicial and Tribunal
    Complaints.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ellis, 2016 ONCA 529

DATE: 20160704

DOCKET: C60494

Simmons, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raymond Ellis

Appellant

Breana Vandebeek, for the appellant

Jessica Smith Joy, for the respondent

Heard: November 26, 2015

On appeal from the convictions entered by Justice Thomas
    P. Cleary of the Ontario Court of Justice on December 30, 2014 and the sentences
    imposed on February 27, 2015.

By the Court:

[1]

On May 11, 2016, this court allowed, in part, the appellants conviction
    appeal from two convictions for attempted possession of a firearm. We quashed
    one of the convictions for attempted possession of a firearm and upheld the
    other. In light of our decision, we invited counsel to submit written
    submissions on sentence if so advised.

[2]

Counsel have now filed the transcript of the sentencing hearing and
    filed brief written submissions concerning the impact of our May 2016 decision
    on sentencing.

[3]

The trial judge imposed concurrent sentences for the two offences of:
    seven months imprisonment (after allowing 11 months credit for pre-sentence
    custody on a 1.5:1 basis), 3 years probation, a 10-year weapons prohibition,
    and a $400 victim fine surcharge.

[4]

The appellant has served the custodial portion of his sentence. He asks
    that the sentence for the remaining conviction be varied to reduce the sentence
    to time served and to reduce the victim fine surcharge to $200.

[5]

The Crown agrees that the victim fine surcharge should be reduced as
    proposed but opposes what would be an effective reduction in the probationary
    term from three years to approximately one year. While the Crown acknowledges
    that the trial judge treated the appellants attempt to possess two guns as an
    aggravating feature, the Crown submits that his reasons reflect that this
    factor was aggravating in relation to the period of imprisonment only and that
    the probationary terms were imposed in response to the pre-sentence report and
    had a rehabilitative purpose. The Crown contends that the three-year term of
    probation is a fit component of the sentence for the remaining offence and this
    offender.

[6]

We do not read the trial judges reasons as treating the appellants
    attempt to possess two guns as an aggravating feature solely in relation to the
    appropriate term of imprisonment. Moreover, we note that the appellant has now
    served the entire custodial portion of his sentence.

[7]

In the circumstances, given that we quashed one of the appellants two
    convictions for attempted possession of a firearm, we would vary the concurrent
    sentence imposed for the remaining conviction by varying the period of
    probation imposed from three years to two years and by reducing the victim fine
    surcharge from $400 to $200. All other terms of the sentence imposed for the
    remaining conviction remain the same.

Released:

JUL 4 2016                                       Janet
    Simmons J.A.

JS                                                     K.
    van Rensberg J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Funes, 2016 ONCA 567

DATE: 20160714

DOCKET: C57828

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Funes

Appellant

Joseph Di Luca and Dan Stein, for the appellant

Davin Michael Garg, for the respondent

Heard: May 31, 2016

On appeal from the conviction entered on March 19, 2013
    and the sentence imposed on July 19, 2013 by Justice Ian B. Cowan of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his conviction for various offences in connection
    with the possession and storage of a firearm. He seeks leave to appeal his
    sentence of five years in prison.

[2]

The appellant was tried by a judge in the Ontario Court of Justice. The
    trial took four days, with two days of trial in late December 2012 and two days
    in February 2013. The trial judge reserved his decision and convicted the
    appellant with written reasons for judgment on March 19, 2013.

[3]

The appellant contends that the trial judge erred in refusing a mistrial
    application after the judge realized he had been sitting on a preliminary
    inquiry involving the appellant as an alleged victim and in which the appellant
    had testified. The appellant also argues that the trial judge, in convicting
    him of firearms offences in relation to a gun that was found in his friends
    house, erred in relying on certain voice recognition evidence offered by a
    police officer who monitored wiretap conversations in an unrelated
    investigation. A further ground of unreasonable verdict was withdrawn at the
    hearing of the appeal. The appellant contends that his sentence was excessive
    and unreasonable in all the circumstances.

[4]

For the reasons that follow we conclude that the trial judge ought to
    have declared a mistrial in the exceptional circumstances of this case. We
    would allow the appeal and direct a new trial on this basis. As such, it is
    unnecessary to address any other ground raised in the conviction and sentence
    appeals.

[5]

The relevant facts are as follows. The firearm in question, a 12 gauge
    sawed-off shotgun, together with five rounds of ammunition, was found in a gym
    bag in the bedroom of the appellants friend Joseph Magdangal, during the
    execution of a search warrant at an address in Mississauga. There was nothing
    in the room to connect the appellant to the gun.

[6]

Magdangal was originally charged with the appellant. Two months before
    the trial he pleaded guilty to the offence of possession of a prohibited
    weapon. In the course of his guilty plea, he attributed ownership of the
    firearm and ammunition to the appellant, saying that the appellant had asked
    him to store the weapon at his home and that he had agreed to do so. When he
    testified at the appellants trial in December 2012, however, Magdangal claimed
    that he was the owner of the gun. He denied that he was holding it for the
    appellant. When the trial continued in February 2013, he testified consistently
    with his guilty plea.

[7]

The Crown also introduced as evidence at the appellants trial certain
    recorded telephone conversations from wiretap surveillance targeting the
    appellant and several other persons in an unrelated homicide investigation. The
    Crown contended that the appellant was a participant in certain exchanges, and
    was the Brian referred to in conversations relating to a gun. Magdangal identified
    his own voice and the voices of the appellant and a third person on the
    recordings, and said they were talking about the appellants gun. There were
    also references in the conversations to Brian having been shot. Magdangal
    admitted that the appellant was the only Brian he knew who had been shot.

[8]

An officer who conducted live monitoring of the wiretaps also identified
    the appellants voice in three intercepts. He testified that he had reached the
    point where he could recognize the participants in the wiretaps by their
    voices. The officer acknowledged that he had direct contact with the appellant
    only once, when he served notice of the wiretap authorization. He also
    acknowledged that prior to his testimony he had listened to the recordings that
    morning before court, and before that he had last listened to the voices almost
    a year before in the monitoring room.

[9]

In his reasons for judgment, the trial judge recognized that it would be
    unsafe to convict the appellant based solely on the evidence of Magdangal, who
    was a classic
Vetrovec
witness. This included both Magdangals direct
    evidence that he was holding the gun for the appellant, and his identification
    of the appellants voice in the intercepts. The trial judge found confirmatory
    evidence in the officers recognition of the appellants voice in the wiretap
    recordings as well as in the substance of what was discussed in the wiretaps. He
    noted that the case turned on whether he could be satisfied beyond a reasonable
    doubt that the persons speaking in the wiretaps included the appellant. He said
    he was satisfied that the voice as identified was that of the appellant and
    that he was talking about the same shotgun that had been found in Magdangals
    possession.

[10]

After
    delivering written reasons convicting the appellant on March 19, 2013, the
    trial judge adjourned the case to April 26th for sentencing.

[11]

The
    morning after the conviction, the trial judge was reviewing his notes on a
    preliminary inquiry he was to continue that day. It was only then that he realized
    that he had been presiding over a preliminary inquiry in an attempted murder
    case in which the appellant Brian Funes was one of two alleged victims of a
    shooting. He notified counsel in both cases.

[12]

The
    preliminary hearing had commenced in July 2012. The appellant testified for two
    days in November 2012 before the case was adjourned. Meanwhile, the first day
    of evidence on the appellants firearms charges took place December 31, 2012.
    That trial continued on February 21, 2013 and was completed with closing
    submissions the following day. The appellant did not testify at his own trial.

[13]

Mistrial
    applications were brought in both proceedings. The issue was whether there was
    a reasonable apprehension of bias resulting from the judges involvement in the
    two cases. In both cases, counsel acknowledged that there was no actual bias,
    and that it was understandable that the trial judge, in the busy Brampton
    court, would not recognize the alleged victim in one case as the accused in
    another. Indeed, the appellants counsel acknowledged that no one, the
    appellant included, had recognized that the trial judge was the same judge that
    was presiding over the preliminary inquiry.

[14]

The
    judge granted a mistrial in the preliminary inquiry in the attempted murder
    proceedings. In his reasons he noted that, because he had listened to wiretap
    evidence in a trial involving an alleged victim of the shooting that was not in
    evidence in the preliminary inquiry, and had made certain findings in that
    case, he had knowledge he should not possess in the preliminary hearing
    proceedings. He concluded that a reasonably minded person would not know the
    inferences he might draw and a fair-minded person looking at the case and
    knowing the circumstances might apprehend that he could not exclude from his
    mind and disabuse his mind of any evidence from the appellants trial.

[15]

The
    trial judge refused to grant a mistrial in the appellants case. He concluded
    that, since he had already rendered a decision, with reasons supporting the
    decision based upon the evidence called by the Crown, and without making any
    findings of credibility against the appellant, a reasonable person informed of
    the background of [the] case would not conclude that there [was] a reasonable
    apprehension of bias in its determination.

[16]

The
    appellant asserts that the trial judge erred in two ways in refusing a mistrial.
    First, he says that, having declared a mistrial in the preliminary hearing in the
    attempted murder case, it was illogical for the trial judge not to have
    declared a mistrial in these proceedings  that result should have flowed
    automatically from the mistrial ruling in the preliminary inquiry. Second, the
    appellant contends that the trial judge erred in focusing on whether his
    judgment had in fact been influenced by his involvement in the preliminary
    inquiry, rather than considering whether there was a reasonable apprehension of
    bias arising out of his having heard the appellant testify in the preliminary
    inquiry in a case where he was the alleged victim of a shooting.

[17]

For
    the reasons that follow, we would give effect to the second argument but not the
    first.

[18]

The
    applicable legal principles are set out concisely in
Wewaykum Indian Band
    v. Canada
, 2003 SCC 45, [2003] 2 S.C.R. 259. In that case, the Supreme
    Court considered a partys challenge to a decision the court had already
    rendered. The author of the courts decision, Binnie J., had some involvement
    in the matter 15 years earlier in his capacity as federal Associate Deputy
    Minister of Justice. The appellant asserted that the decision was tainted by a
    reasonable apprehension of bias.

[19]

As
    the point of departure, the court noted at para. 59, that there is a
    presumption of impartiality of the judiciary that carries considerable weight.
    The burden is on the party arguing for disqualification to establish that the
    circumstances justify a finding that the judge must be disqualified from
    deciding a particular case.

[20]

The
    court observed at para. 62 that most arguments for disqualification typically
    begin with an acknowledgment by all parties that there was no actual bias, and
    move on to a consideration of the reasonable apprehension of bias. The court
    explained at para. 65, [W]hen parties say that there was no actual bias on the
    part of the judge, they may be conceding that the judge was acting in good
    faith, and was not consciously relying on inappropriate preconceptions, but was
    nevertheless unconsciously biased.

[21]

The
    court continued at para. 66:

To put it differently, in cases where disqualification is
    argued, the relevant inquiry is not whether there was in fact either conscious
    or unconscious bias on the part of the judge, but whether a reasonable person
    properly informed would apprehend that there was. In that sense, the reasonable
    apprehension of bias is not just a surrogate for unavailable evidence, or an
    evidentiary device to establish the likelihood of unconscious bias, but the
    manifestation of a broader preoccupation about the image of justice. [Emphasis
    omitted.]

[22]

And
    at paras. 60 and 74, the court stated the question as follows, based on the
    test set out by de
Grandpre J. in
Committee for Justice and Liberty et al. v. National Energy Board et al
., [1978] 1 S.C.R. 369: What
would an informed
    person, viewing the matter realistically and practically  and having thought
    the matter through  conclude? Would this person think that it is more likely
    than not that [the judge], whether consciously or unconsciously, did not decide
    fairly?

[23]

In
    the preliminary inquiry proceedings, the judge in this case granted a mistrial
    after applying the correct test  he focused on the fact that he had heard wiretap
    evidence that the Crown had not intended to lead in those proceedings, and he
    noted that a reasonably minded person would not know the inferences he might
    draw and might apprehend that he could not disabuse [his] mind of any evidence
    from the Funes matter. The fact that he granted a mistrial in those
    proceedings did not mean that he had to grant a mistrial in the appellants
    case. The two applications did not stand or fall together. Each mistrial
    application had to be considered separately and in light of the impact of the
    judges involvement in another proceeding on the perceived fairness of the
    proceeding in question.

[24]

While
    the issue in the preliminary inquiry proceedings was the impact of the trial
    judges having heard the wiretap evidence, the issue in the appellants case
    was the impact of what the trial judge heard during the preliminary inquiry on
    the perceived fairness of the appellants trial. In that regard, the issue was
    whether a reasonable person would conclude that the trial judge may have been
    consciously or unconsciously influenced by the evidence he heard in the
    preliminary inquiry in deciding the appellant was guilty of the firearms
    offences.

[25]

The
    trial judge, in conducting this assessment, noted that he had made the decision
    based on the evidence and that he had not had to determine the appellants
    credibility. The issue, however, was not how he had in fact decided the case,
    but the perception of fairness as a result of what he heard during the
    preliminary inquiry. Further, the fact that the trial judge had not been
    required to determine the appellants credibility (which arguably might have
    been seen to have been affected by events at the preliminary inquiry, where the
    judge exhorted the appellant to answer questions and granted the Crown the
    right to cross-examine him), was not the main concern. The issue was the impact
    of the evidence heard during the preliminary inquiry on what became a central
    issue in the appellants trial  the identification of his voice in the wiretap
    intercepts.

[26]

The
    trial judge recognized that he could not convict the appellant based on Magdangals
    evidence alone. As such, he looked for confirmation of that evidence, which he
    found in the wiretapped conversations. As he noted in his reasons, he had to be
    satisfied beyond a reasonable doubt that one of the speakers was the appellant.
    Two pieces of evidence he relied on were the police officers identification of
    the appellants voice and the content of the conversations, which included the
    fact that the speaker, also named Brian, had acknowledged in one of those recordings
    that he had been shot.

[27]

The
    appellant did not testify at his trial. However, the trial judge, through his
    involvement in the preliminary inquiry, had an opportunity to hear the
    appellant speak. He also had knowledge that the appellant was in fact a Brian
    who had been shot.

[28]

In
    the unusual circumstances of this case, and in particular given the specific
    issue that fell to be determined in the appellants trial, a mistrial ought to
    have been granted because of the trial judges participation in the preliminary
    inquiry and what had transpired in those proceedings. Again, the issue is not
    the trial judges actual ability to determine the case based only on the
    evidence at trial, which is not in doubt. Rather, the issue is the perception
    of fairness, and, as articulated in
Wewaykum Indian Band
, the broader
    preoccupation about the image of justice. In our view, a reasonable person
    considering the matter in a fully informed way would apprehend that the trial
    judge would have been influenced, albeit unconsciously, by the evidence in the
    preliminary inquiry in his consideration of the appellants guilt in the
    subject proceedings.

[29]

For
    these reasons the appeal is allowed, the conviction set aside and a new trial
    ordered, before a different judge.

J. MacFarland J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Guindon, 2016 ONCA 583

DATE: 20160720

DOCKET: C61415

Watt, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Harley Davidson Guindon

Appellant

Harley Davidson Guindon, acting in person

Michael Dineen, duty counsel

Lisa Csele, for the respondent

Heard: July 13, 2016

On appeal from the conviction entered on February 18,
    2015 by Justice Sue MacLean of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We are satisfied that, on the findings of fact made by the trial judge,
    the Crown had established the
actus reus
of fraud. As the Supreme
    Court of Canada made clear in
R. v.
Riesberry,
2015 SCC 65, at
    para. 22, proof of fraud does not always depend on showing that the alleged
    victim, in this case Legal Aid Ontario, relied on the fraudulent conduct or was
    induced by it to act to his or her detriment.

[2]

We are satisfied that the reasons of the trial judge reveal that she was
    satisfied that there was a sufficient causal connection between the fraudulent
    act and the victims risk of deprivation.

[3]

The appeal from conviction is dismissed.