W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.
COURT OF APPEAL FOR ONTARIO
DOHERTY, ROSENBERG and ARMSTRONG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Timothy E. Breen
for the appellant
Respondent
- and -
Jamie C. Klukach
for the respondent
K. V.
Appellant
Heard: May 28 and 29, 2003
On appeal from the conviction by Justice J.J. Douglas of the Ontario Court of Justice dated April 29, 2002.
1We have concluded that this appeal must be allowed, the conviction set aside and an acquittal entered. The appellant was convicted of sexual assault of a seven-year-old child. The incident allegedly occurred during the evening of December 31, 2000 and January 1, 2001. At the time, the appellant, who was 14 years of age, was babysitting the complainant and her younger brother and sister. The complainant testified that the appellant briefly touched her pubic area underneath her pyjamas when the two of them were watching television.
2The manner in which the allegation against the appellant surfaced is central to an understanding of why the conviction cannot stand. The complainant’s mother is a nurse. She had taught her daughter about inappropriate touching. When she returned home in the early morning hours of January 1, the complainant seemed normal and made no complaint about the appellant. Thereafter, the appellant became the family’s regular babysitter and during this entire time of many months the complainant not only made no complaint about the appellant but acted completely normal around the appellant. According to the mother, the complainant never showed any reluctance to have the appellant as her babysitter and was happy to see him.
3In July 2001, the appellant’s parents went to the complainant’s parents and disclosed to them that the appellant had been charged with sexual assault in connection with babysitting another child. The appellant’s parents were hoping to get a letter of reference from the complainant’s parents. The mother was quite willing to do so. The father was not and concluded that the appellant was a child molester. By this time, the complainant’s parents had separated, although they continued to reside in the same house. The question of the letter became another point of contention with the couple.
4On August 1, 2001, the father told the complainant that the appellant had done something bad with a four-year-old girl and that the police had charged him. According to the father, the complainant spontaneously told him that the appellant had tried to put his hands up her pyjamas. The father then left a note for his wife (the two were no longer communicating verbally) telling her to ask the complainant about something she had told him. The mother did so and the complainant disclosed the assault to her. The mother testified that it was contrary to the complainant’s usual character not to have told her about the incident. She was very surprised that the complainant made this disclosure to her husband and not to her. She testified that she believed that her husband was looking for ways to get back at her for having ended the marriage.
5The father claimed that he said nothing to his daughter other than as set out above. The trial judge found the father to be a very unsatisfactory witness. The trial judge described him as evasive and having an evident bias against the appellant. He was shown to have contradicted himself on some important parts of his testimony. In particular, he gave two entirely different accounts of the complainant’s demeanour when she made the disclosure to him.
6The trial judge approached the case on the basis that there were essentially two alternatives. Either the complainant was telling the truth or she and her father had deliberately fabricated a false allegation against the appellant. He resolved that issue in this fashion:
Two things are, I believe, important here: the inherent rationality of the theory of fabrication, and its consistency with the evidence of the witnesses. I recognize that distressed spouses all too often use children to get even with their opposite member. Your classic case would be an allegation of some form of abuse, both to get even and to enforce or extend property or custodial rights.
The theory here, however, is either far subtler or far-fetched. If true, the result is the father’s daughter is exposed to the difficulties of the court process. The mother is not embarrassed or deprived of anything and the father gains little except the fleeting capacity to say I was right, and you were wrong about the complainant in his letter of reference. One would think a mind so malignant as to unnecessarily expose his young daughter to the difficulties of the criminal courts for so little gain would at least assist her in that fabrication by supporting her case where he could, in his testimony, yet he does not.
In short, the hypothesized explanation does not withstand scrutiny and finds no support in the evidence, notwithstanding my agreement as to the apparent unwillingness of the father to tell the truth about many matters.
7In our view, by proceeding in this way the trial judge misapprehended both the nature of the defence and the serious problem posed by the manner in which the disclosure was made and the impact of the negative finding about the father’s credibility. The real issue here was the reliability of the complainant’s account of what occurred. The trial judge had to come to grips with the impact of the manner of disclosure on the reliability of the complainant’s evidence. This he failed to do.
8The issue was not whether the father deliberately fabricated a false allegation but whether suggestions by the father may have led the complainant to believe that she had been assaulted. The manner in which the father approached his daughter was fraught with peril. Nevertheless, it might have been open to a trier of fact to discount this aspect of the case, if the father’s evidence could be relied upon. However, as we have said, the trial judge found that he could not rely on the father’s evidence. The fact that the father gave inconsistent versions of the disclosure episode itself is particularly troubling.
9We are also concerned with the manner in which the trial judge dealt with the delay in disclosing the incident to the mother. It is accepted that both children and adults who have been assaulted may delay in making disclosure of a sexual assault. As Major J. said in R. v. D. (D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.) at para. 65:
A trial judge should recognize and so instruct a jury that there is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant [emphasis added].
10The trial judge resolved the issue of the delay in disclosure by concluding that the complainant did not perceive that the touching by the appellant was improper. That finding was not reasonably open on these facts. The mother had told her child about bad touching. In her evidence, the complainant said that when the appellant touched her, it hurt. Her description of the incident clearly showed an improper touching and the father claimed that the complainant immediately, with no prompting from him, disclosed the improper touching by the appellant. Those facts are inconsistent with the trial judge’s finding that the reason for the delay was that the complainant did not realize the touching was improper. They are more consistent with the defence theory that the child came to believe she had been touched because of the suggestive way in which the father elicited the complaint.
11Equally troubling is that the trial judge failed to consider the impact on the reliability of the complainant’s evidence of his own finding that the child did not perceive the events as improper. Taken with the manner in which the disclosure was elicited, we think this seriously undermined the prosecution case.
12In these circumstances, the verdict cannot stand. We have considered whether the appropriate disposition is to order a new trial or to enter an acquittal. We are of the view that an acquittal must be entered. On this record, no trier of fact acting reasonably would ever be in a position to determine the real circumstances that led to the disclosure. That was a pivotal issue in the case. Since the father could not be relied upon to give an accurate account, a trier of fact would never be able to make a proper assessment of the reliability of the complainant’s account. The trial judge found that the complainant was an honest witness but that is only one aspect of the issue. The real question here was the reliability of the account and on this record a finding in favour of the prosecution would be unreasonable.
13Accordingly, the appeal is allowed, the conviction quashed and an acquittal entered.
Signed: “Doherty J.A.”
“M. Rosenberg J.A.
“Armstrong J.A.”
RELEASED: JUNE 4, 2003