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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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
ROSENBERG, ARMSTRONG and ROULEAU JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Amanda Rubaszek for the respondent
Respondent
- and -
G. C.
Russell Silverstein for the appellant
Appellant
Heard: April 19, 2006
On appeal from the judgment of Justice Richard G. Byers of the Superior Court of Justice May 31, 2005.
ROULEAU J.A.:
Overview
1The appellant was tried by judge alone and convicted on May 31, 2005, of sexual assault and sexual interference on an eight year old girl. The sexual assault conviction was stayed. The appellant was sentenced to twenty-one days in custody followed by eighteen months probation.
2He appeals his conviction on the basis that the trial judge:
(a) erred in feeling compelled to decide which of the complainant or the appellant was telling the truth;
(b) erred in considering the complainant’s account to her mother as being supportive of the truth of her allegations;
(c) gave reasons for disbelieving the appellant that were specious and unreasonable; and
(d) held the appellant to a much higher standard than the complainant with respect to their credibility.
3For reasons that follow, I would dismiss the appeal.
Facts
4With the consent of the parties, the complainant, nine years old at the time of trial, testified under oath. She testified that the appellant, her great uncle, touched her genital area, both under and over her clothes on as many as thirty occasions while her family was visiting the appellant’s residence. She was seven years old when the abuse began, and she was eight years old at the time of the last incident of sexual touching.
5The complainant first disclosed her allegations to her cousin, D. After telling D. the details, D. told her that the appellant was “child abusing” her and told the complainant to tell her mother.
6A month or two later, the complainant was reading a book with her mother. According to the complainant, her mother read a word at the end of a chapter that was like old English. This word sounded like “child abuse” to her. She then asked her mother what child abuse was and told her mother that she thought she had “been child abused”. Her mother explained what child abuse was and the complainant confirmed that she had indeed been abused by the appellant.
7The mother’s description of the disclosure was slightly different. Her recollection was that a character in the book tells his uncle that if he hits him, it would be considered child abuse. The complainant, upon hearing this, asked her mother what child abuse was. The mother’s response prompted the complainant to say that she “thought that she had had child abuse done to her” by the appellant. The mother was in contact with the Children’s Aid Society almost immediately.
8The appellant’s wife, Mrs. C., also testified. On the day the appellant was arrested, he told her that he “didn’t do this”. When the appellant later called her from the police station to try to tell her that he was innocent, Mrs. C. did not want to hear it, having already decided for herself that the appellant was guilty. When Mrs. C. brought the appellant some of his belongings, she confronted him with the complainant’s allegations. Mrs. C. testified that after hearing the details of the allegations, the appellant responded “I don’t remember, I can’t remember” and then put his head down on the steering wheel.
9Mrs. C. first made mention of this utterance to the Crown attorney a few days before trial on May 25, 2005, when she called to tell him about a letter the appellant had written to her. She had not mentioned this utterance either in her May 26, 2004 written statement to the police or in her testimony given at the preliminary hearing on January 4, 2005.
10The defence attacked the complainant’s credibility in cross-examination by highlighting the inconsistencies in her evidence with respect to the number times the sexual touching allegedly occurred, the parties present when it happened, and the room in which the events took place.
11The appellant testified. He categorically denied the allegations and denied having made the statement attributed to him by Mrs. C.
12The case turned largely on the issue of the credibility and reliability of the Crown and defence witnesses.
13The trial judge provided short but thorough reasons noting, at the outset, that he should not simply choose between competing versions of the story. He correctly recognized that the burden of proof was on the Crown and articulated and applied the principles set out in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). The trial judge concluded that the appellant’s denial of the abuse was incapable of belief and that his version of events was a lie. On the evidence he did accept, the trial judge was convinced of the appellant’s guilt beyond a reasonable doubt and he convicted the appellant accordingly.
Analysis
(a) Did the trial judge feel compelled to decide which of the complainant or the appellant was telling the truth?
14The appellant argues that the trial judge improperly considered the complainant’s truthfulness as a first step before considering the appellant’s credibility. The trial judge then approached the case as one of choosing between two competing versions of what happened. This, he argues, is apparent from the portion of the reasons where the trial judge stated:
[Y]ou haven’t made my job any easier but I get paid to make the call.
Counsel have heard me say before that sometimes we’re not just in the best place in this criminal law business that we’re all in, to sort these things out. But it seems to be the only place there is. So we have to do the best we can.
So just listening to the two of them, it would be difficult for me to be able to give a reason for a decision.
15Although portions of the trial judge’s decisions, such as the one quoted above, are at times discursive, it is not appropriate to take small portions of the reasons and look at them in isolation. When the trial judge’s reasons are considered as a whole, it is clear that the trial judge properly recognized that the trial was not a credibility contest. He charged himself on the W.(D.) principles and considered the whole of the trial evidence before making the findings required to convict or acquit the appellant.
16With respect to the order in which the trial judge assessed the credibility of the complainant and the appellant, the cases of R. v. Richardson (1992), 1992 12753 (ON CA), 74 C.C.C. (3d) 15 (Ont. C.A.) and R. v. Maharaj (2004), 2004 39045 (ON CA), 186 C.C.C. (3d) 247 (Ont. C.A.) do not, as suggested by the appellant, stand for the proposition that where the accused testifies his credibility has to be assessed first. At para. 33 of R. v. Maharaj, this court confirmed that W.(D.) need not be applied “in the order prescribed by Cory J.”. These two cases simply state that trial judges ought not to merely choose between the evidence of the complainant and the accused and have a duty to give reasoned reasons for their decisions. See also R. v. Boucher (2005), 2005 SCC 72, 202 C.C.C. (3d) 34 (S.C.C.) at para. 29. We reject this ground of appeal.
(b) Did the trial judge consider the complainant’s account to her mother as supporting the truth of the complainant’s allegations?
17The appellant argues that the trial judge used the complainant’s original complaint to her mother for its truth and, therefore, as being confirmatory of the abuse having occurred. The appellant maintains that the original complaint ought not to have been admitted, as it did not come within any of the recognized exceptions and had no probative value.
18In my view, the original complaint to the complainant’s mother was properly admitted and falls squarely within the narrative exception to the general rule against self-serving evidence. I add that no objection was taken to the evidence at trial and given the general nature of the complaint made to the mother the potential for it being used for the prohibited purpose of oath helping was limited.
19In R. v. F.(J.E.) (1993), 1993 3384 (ON CA), 85 C.C.C. (3d) 457 at 474 this court set out the parameters of the narrative exception:
Narrative is justified as providing background to the story – to provide chronological cohesion and eliminate gaps which would divert the mind of the listener from the central issue. It may be supportive of the central allegation in the sense of creating a logical framework for its presentation – but it cannot be used, and the jury must be warned of this, as confirmation of the truthfulness of the sworn allegation.
In the present case, the evidence of the complaint was necessary to understand the unfolding of events.
20Although properly admitted at trial, the evidence of prior complaint cannot be used as a form of self-corroboration to prove that the incident in fact occurred. It cannot be used as evidence of the truth of its contents. However, the evidence can “be supportive of the central allegation in the sense of creating a logical framework for its presentation”, as set out above, and can be used in assessing the truthfulness of the complainant. As set out in R. v. F. (J.E.) at p. 476:
The fact that the statements were made is admissible to assist the jury as to the sequence of events from the alleged offence to the prosecution so that they can understand the conduct of the complainant and assess her truthfulness. However, the jury must be instructed that they are not to look to the content of the statements as proof that a crime has been committed.
21The trial judge understood the limited use that could be made of this evidence as appears from his reasons:
[I]t certainly struck me while the fact that you go and tell somebody that you were molested doesn’t confirm the fact that you were molested. I’m struck by the manner or the way it came out, tends to confirm [the complainant’s] story – how they were reading this book, and how the thing came up about child sexual abuse.
22In cases involving sexual assault on young children, the courts recognize the difficulty in the victim providing a full account of events. In appropriate cases, the way the complaint comes forth can, by adding or detracting from the logical cogency of the child’s evidence, be a useful tool in assisting the trial judge in the assessment of the child’s truthfulness. This was such a case. I would, therefore, give no effect to this ground of appeal.
(c) Were the trial judge’s reasons for disbelieving the appellant specious and unreasonable?
23The appellant submits that the trial judge found nothing in the manner of the appellant’s testimony to undermine his credibility. He then set about to find a basis for rejecting that testimony. He seized upon Mrs. C.’s testimony that the appellant had said “I don’t remember” in response to being confronted with the allegations of abuse and used the appellant’s denial of having made this statement as undermining his entire testimony. By doing so, the appellant argues, he reversed the burden of proof.
24It is true that the trial judge gave considerable weight to the appellant’s denial of having made the statement to Mrs. C. The trial judge considered Mrs. C.’s evidence and her explanation as to why she had neither made reference to this statement to police nor mentioned it in her evidence at the preliminary hearing. The trial judge accepted her explanation and used the conflict between the appellant’s and Mrs. C.’s evidence in assessing his credibility.
25The trial judge, however, relied on other evidence, such as the evidence of the complainant, in reaching his conclusion that the appellant had lied. The reasons expressed by the trial judge for rejecting the appellant’s testimony and concluding that the Crown had met the burden of proving guilt beyond a reasonable doubt are sufficient and do not show a reversal of the burden of proof.
(d) Did the trial judge hold the appellant to a higher standard than the complainant with respect to their credibility?
26The appellant refers to extracts from the trial judge’s reasons wherein the trial judge says that the complainant “seemed to be telling me the truth”. He submits that these indicate that the trial judge applied a lower standard to the evidence of the complainant and Mrs. C. than to the evidence of the appellant. The appellant listed a number of inconsistencies in the complainant’s testimony and suggested that the trial judge improperly relied on the absence of motive to fabricate as a basis for accepting the evidence of the complainant and Mrs. C.
27There is no evidence that the trial judge applied the wrong legal standard or that he approached the assessment of credibility of Crown and defence witnesses differently. The trial judge was alive to the inconsistencies in the complainant’s evidence and assessed her evidence as a whole. He found her to be credible. The trial judge properly addressed motive to fabricate, as the appellant had suggested that Mrs. C. did have such a motive. The trial judge considered the absence of any motive to fabricate as one feature of the evidence, but the reasons do not suggest that the trial judge placed any onus on the appellant to prove a motive to fabricate. Absence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact-finding process: see R. v. Jackson (1995), 28 W.C.B. (2d) 179 at para. 5 (Ont. C.A.).
Conclusion
28Considering the length of the trial, the trial judge gave adequate reasons, supported by evidence, as to why he disbelieved the appellant’s evidence and why that evidence did not leave him with a reasonable doubt. He also assessed the Crown’s evidence and determined that the offences had been made out beyond a reasonable doubt. The trial judge demonstrated a good grasp of the evidence as well as the issues and his findings of credibility were based on an assessment of the evidence as a whole.
29For these reasons, I would dismiss the appeal.
“Paul S. Rouleau J.A.”
“I agree M. Rosenberg J.A.”
“I agree R.P. Armstrong J.A.”
