THUNDER BAY - A 69-year-old Oliver-Paipoonge man has lost his appeal to overturn a 2019 conviction for sexual interference and sexual assault against a minor who was between the age of seven and 13-years-old.
A panel of three judges with the Court of Appeal for Ontario released their decision earlier this month, determining the trial judge did not commit any of the errors outlined in the accused’s motion. The panel consisted of Justice Lorne Sossin, Justice Gary Trotter, and Justice Lise Favreau.
The accused, who cannot be named in accordance with a publication ban to protect the identity of the complainant, was first charged in August 2017.
A three-day trial was held in June 2019 where the complainant testified to at least five incidents of being sexually assaulted by the accused between October 2008 and December 2014, though there may have been as many as 20 incidents of inappropriate touching and assault.
The incidents took place at the property of the accused west of Thunder Bay, which included a secret loft above the garage where one of the assaults took place.
The trial judge, Justice Bonnie Warkentin, found the accused guilty of sexual interference and sexual assault in September 2019, saying she had no reason to question the credibility of the complainant. The accused was acquitted on charges of unlawful confinement and invitation to sexual touching.
In August 2020, Justice Warkentin sentenced the accused to eight years in custody and he was also required to register with the Sex Offender Information Registration Act for 20 years.
The accused filed an appeal of the conviction and sentence, arguing the trial judge failed to properly assess his evidence, reversed the burden of proof, failed to provide inadequate reasons, and imposed a sentence that was too high.
According to the accused’s appeal, the trial judge failed to consider his evidence of the implausibility of the assaults. One example cited in the appeal was an assault taking place in a bedroom of his house when 20 to 40 other family members were present at the residence.
“According to the [accused], such a brazen assault without detection or a noticed change in demeanour on the part of either the [accused] or [complainant] was implausible,” the appeal decision outlined.
But the decision goes on to say that Justice Warkentin addressed the implausibility arguments in her ruling.
“First, she rejected the contention that a certain response to a sexual assault was to be expected, while another response was implausible,” the decision reads. “Second, the trial judge found there was opportunity for the [accused] to commit the assaults against the complainant notwithstanding their proximity to others.”
Justice Warkentin also accepted the complainant’s evidence with respect to opportunity, the appeal judges said, pointing to her statement that the complainant’s testimony was unshaken during cross-examination.
“’In many respects her evidence was supported by the testimony of other witnesses as to time and place and the opportunity,’” Justice Warkentin said in her original ruling.
The appeal also argued the trial judge reversed the burden of proof, resulting in the accused having to disprove the allegations against him.
Examples cited in the accused’s appeal include Justice Warkentin pointing to consistencies in testimony by the complainant and the accused, which gave credibility to the former but diminished the creditability of the latter.
“According to the [accused], the trial judge conflated the confirmation that the [accused] had opportunity to commit the sexual assault with proof that he did in fact do so,” the decision stated. “As the [accused] puts it, ‘the trial judge appears to have found that because opportunity for the assaults existed, they happened.’”
The appeal judges referred to the distinction between a finding of credibility and a finding of beyond a reasonable doubt that an offence has occurred.
“I do not accept that the trial judge was blind to this distinction in this case,” the decision reads. “Indeed, notwithstanding that the trial judge found [the complainant] credible, the trial judge acquitted the [accused] on the charge of unlawful confinement and the stand-alone count of invitation to sexual touching.”
With respect to the trial judge not providing adequate reasons, the accused argued that Justice Warkentin failed to address his evidence or explain why she disbelieved his statement that he never touched the complainant, resulting in an unclear basis for the conviction.
The appeal judges cited previous cases and findings that state even if a trial judge expressed themselves poorly, factual sufficiency is established if the appeal court understands the ‘what’ and ‘why’ from the record.
“I do not accept the [accused’s] characterization of the trial judge’s reasons as failing to assess the [accused’s] credibility, and consequently, unclear as to the basis for the conviction,” Justice Sossin said in the decision.
“While it would have been preferable for the trial judge to elaborate on her disbelief of the [accused’s] testimony that he never touched [the complainant] sexually, her review of the evidence of the five incidents alleged by [the complainant] makes the basis for her findings clear.”
The accused’s argument that the trial judge erred in the principle of sentencing by saying use of force was involved and no credit was given for ‘stringent’ bail conditions was also dismissed by the appeal court.
Justice Warkentin cited several aggravating factors when handing down her sentence, including the accused being in a position of authority and trust over the complainant, the age of the complainant, the assaults taking place over several years, and the use of force.
The use of force included the accused holding the complainant down with his legs during one of the assaults.
Mitigating factors were also considered by Justice Warkentin during sentencing, including the accused having no previous criminal record and having strong family and community supports.
“I see no error of principle with respect to the trial judge’s consideration of mitigating and aggravating factors in sentencing the [accused],” Justice Sossin said.
According to the appeal court’s decision, the accused’s argument for not receiving pre-sentence custody for time spent on bail conditions including house arrest was also not merited.
“The [accused] does not work, lives full-time with his wife and provided no evidence of activities he could not participate in caused by the requirement that he be with his wife at all times,” the decision reads.
