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:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, 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.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
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.
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – I. (J.W.) (Appellant)
BEFORE:
FELDMAN, JURIANSZ and MACFARLAND JJ.A.
COUNSEL:
W. John McCulligh
for the appellant
Nadia Thomas
for the respondent
HEARD:
March 21, 2006
On appeal from conviction by Justice Nancy M. Mossip of the Superior Court of Justice dated May 10, 2004 and sentence imposed on July 28, 2004.
E N D O R S E M E N T
1The appellant appeals his conviction for sexual assault of his stepdaughter, a girl fourteen years of age and mentally challenged.
2The trial judge accepted the evidence of the complainant despite the significant frailties that she identified that could seriously affect the credibility and reliability of the evidence.
3The first of these was the fact that the complainant disclosed the allegations in increments over a period of one and one half years. The first disclosure in October 2001 included her allegation that she was sexually assaulted by both her brother and by her stepfather. She gave a video-taped statement that included both allegations. The allegations against the brother were quite detailed while those against the appellant were much less detailed. The brother pled guilty to the charges brought against him.
4The second disclosure was made in May 2002 following the preliminary hearing. This disclosure was made to a female friend of the complainant’s mother who was providing emotional support to the complainant when she was a witness. A second statement was taken about a week later. The third disclosure was made in January 2003 when the complainant was viewing a sexually explicit movie together with her mother’s friend, who had become a caregiver for her. The woman asked the complainant if the appellant had done the same thing to her as a man did to a woman in the movie they watched, and she answered that he had. As a result, a third video-taped statement was taken.
5A second frailty, related to the first, was the possible effect of the role of the mother’s friend in influencing the complainant’s second and third disclosures.
6A third frailty was the complainant’s inability to remember many details of the events, particularly in contrast with her detailed account of what occurred with her brother.
7In order to assist the trial judge to address these frailties in context, the Crown called Dr. Berry, a clinical and forensic psychologist. Dr. Berry prepared two reports on the complainant specifically and with respect to child sexual abuse and disclosure issues generally. He testified at the trial and was cross-examined by defence counsel.
8The trial judge relied on Dr. Berry’s opinion evidence as the most significant basis for concluding that the frailties in the complainant’s evidence did not affect her overall credibility.
9Unfortunately, the tape of the cross-examination of Dr. Berry by defence counsel was lost before it was transcribed by the court reporter, so that this important portion of the trial proceedings is unavailable for review by this court.
10In those circumstances, this court is unable to properly assess whether the trial judge erred in her use of the evidence of this witness as counsel submits. Although the trial judge stated that the evidence could not be used for oath-helping, because of the very serious problems with the reliability of the complainant’s evidence and the extensive reliance by the trial judge on Dr. Berry’s opinion to resolve those problems, there is a serious concern about this ground of appeal and the safety of the verdict.
11Furthermore, the trial judge did not specifically discuss the issue of potential contamination of the complainant’s evidence by the involvement of the caregiver, but we were advised that Dr. Berry addressed this issue in his cross-examination and may have given answers that assisted the defence. If that was the case, this evidence was not reconciled by the trial judge.
RESULT
12In the result, the appeal against conviction is allowed and a new trial is ordered.
Signed: “K Feldman J.A.”
“R.G. Juriansz J.A.”
“”J. MacFarland J.A.”