R. v. J.V., 2007 ONCA 194

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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.

CITATION: R. v. J.V., 2007 ONCA 194

DATE: 20070321

DOCKET: C44730

COURT OF APPEAL FOR ONTARIO

WEILER, MACFARLAND AND LAFORME JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

J.V.

Appellant

Joseph Wilkinson for the appellant

Tracy Stapleton for the respondent

Heard: January 8, 2007

On appeal from the conviction entered by Justice Robert N. Fournier of the Ontario Court of Justice dated August 2, 2005.

MACFARLAND J.A.:

OVERVIEW

1The appellant appeals his conviction for sexual assault on August 2, 2005 by the Honourable Mr. Justice Fournier, sitting without a jury, at Haileybury, Ontario.

2The complainant (K.F.), who was fifteen years old at the time of the offence and sixteen at trial, alleges that, after a party held by her parents for her brother’s birthday, the appellant performed oral sex on her and briefly penetrated her without her consent. The appellant was self-represented at trial. He denied that any sexual activity had taken place between him and K.F.

3On this appeal, the appellant raises numerous grounds of appeal. For the reasons that follow, I would not give effect to the majority of these. However, I do agree that the trial judge erred when he failed to put the appellant to his election under s. 536(2) of the Criminal Code. For this reason, a new trial is required.

THE FACTS

4On September 12, 2004 – the day of the alleged offence – the appellant, K.F., K.F.’s older sister (A.F.), and other family and friends gathered at K.F.’s parents’ home for a birthday party for K.F.’s older brother. Until shortly before this date, the appellant had been involved in a relationship with A.F. The appellant had not been invited to the party, but showed up in an apparent effort to reconcile with A.F. While his attendance was not welcomed, the family appeared to tolerate it.

5On the evidence at trial, the appellant made a number of efforts to speak to A.F. during the party, but on each occasion she walked away from him. Eventually A.F. left the party altogether.

6K.F. arrived at the party at approximately 10:00 p.m., after having worked her shift at K[…].

7While there was some conflict in the evidence at trial about how much K.F. had to drink at the party, the preponderance of the evidence suggests that she had very little, if anything, to drink. However, with the exception of K.F. and her father, there is little doubt that almost everyone else at the party had a lot to drink that night.

8When the party wound down, someone had placed a pillow and a blanket on the couch in the living room where it was intended that the appellant would sleep. K.F. had for some time been sleeping on a mattress on the floor in that same room; her bedroom was undergoing renovations at the time. K.F.’s aunt also slept on a love-seat in the living room for part of the night. K.F.’s parents slept approximately twenty-five feet down the hall from the living room.

9According to K.F., after everyone else had gone to bed, the appellant, who had been on the couch, stood at the end of her mattress. She asked him what he wanted, but he did not answer. The appellant pulled off K.F.’s blanket and pulled her pants down. He then performed oral sex on her and briefly penetrated her with his penis. The appellant then asked K.F. “what are you going to do for me?” K.F. made no sounds and did not resist or complain during the assault.

10Soon after the alleged assault, K.F. says that she went to the bathroom, where she cried for about five minutes. She then returned to the living room and angrily told the appellant to get out of her bed. He refused. K.F. went to sleep on the couch.

11The complainant did not report this assault to the police until January 2005, after talking to some friends. She says that she did not come forward earlier because she was afraid, embarrassed, and worried that her parents would not believe her. After the incident, she never smiled; she became depressed and moody.

12Although the appellant admits that he went to sleep on K.F.’s mattress and that he would not get off her mattress when asked, he denies that he assaulted K.F. He denies that any sexual activity took place between them.

ISSUES

13The appellant raises seven grounds of appeal. As set out in paragraph 17 of his factum, they are:

1. Was the trial a nullity because the trial judge lacked jurisdiction due to the failure to put the appellant to his election under s. 536(2) of the Criminal Code?

2. Did the trial judge err in not appointing counsel on behalf of the appellant under s. 486(2.3) of the Criminal Code?

3. Did the trial judge err in failing to give adequate assistance to the unrepresented appellant?

4. Did the trial judge’s conduct of the case give rise to a reasonable apprehension of bias?

5. Did the trial judge err in admitting evidence of the complainant’s post-event demeanor or in placing improper weight on that evidence, if admissible?

6. Did the trial judge err in engaging in improper propensity reasoning?

7. Did the trial judge err in his application of the burden and standard of proof?

ANALYSIS

Was the trial a nullity because the trial judge lacked jurisdiction due to the failure to put the appellant to his election under s. 536(2) of the Criminal Code of Canada?____________ ________________________________________

14Section 536(2) of the Code provides:

If an accused is before a justice charged with an indictable offence, other than an offence listed in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553, the justice shall, after the information has been read to the accused, put the accused to an election in the following words:

You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?

15It is clear from the record that the language of s. 536(2) was not put to the appellant. The only question that remains is whether what was said amounts to substantial compliance with the section. It is the appellant’s position that there was neither substantial compliance with s. 536(2) nor effective waiver of the requirements of that section. In such circumstances, the appellant says, the provincial court judge was without jurisdiction to try him. The appellant relies on R. v. Mitchell (1997), 1997 CanLII 6321 (ON CA), 121 C.C.C. (3d) 139 (Ont. C.A.) where at para. 28 Doherty J.A. stated:

If an accused has an election as to the mode of trial, that election should be put to the accused in the language of s. 536(2). Absent waiver of the procedural requirements of that section, a failure to put the accused to his or her election, in terms which at least substantially comply with the section is a procedural error resulting in a loss of jurisdiction to conduct either a trial or a preliminary inquiry[.]

16Doherty J.A. further concluded at para. 29 that the court could not use s. 686(1)(b)(iv) to cure a failure to put an accused to his election. He reasoned:

By its terms, [s. 686(1)(b)(iv)] can reach only procedural errors committed by a court having “jurisdiction over the class of offence” for which the accused was convicted. A judge of the Provincial Division has no jurisdiction to try an electable indictable offence unless an accused has made an effective election for trial in that court. As Griffiths J.A. said, in R. v. Pottinger (1990), 1990 CanLII 10935 (ON CA), 54 C.C.C. (3d) 246 (Ont. C.A.) at 252:

The complete want of jurisdiction to conduct the trial is not the kind of procedural irregularity which … should be cured by invoking s. 686(1)(b)(iv).

17Doherty J.A. went on in para. 30 to consider the question of waiver:

Unless there was an effective waiver of the procedural requirements of s. 536(2), the trial was a nullity and the appeal must succeed. Section 536(2) was enacted to assist an accused in making an informed decision as to mode of trial. An accused may personally, or through counsel, waive compliance with a procedure like s. 536(2) which has been enacted for the protection of the accused: Korponey v. Attorney General of Canada (1982), 1982 CanLII 12 (SCC), 65 C.C.C. (2d) 65 (S.C.C.) at 73. In Korponey, supra, at p. 74, a case involving waiver of procedural rights surround a re-election, Lamer J., for the unanimous court, described the elements of an effective waiver of a procedural right in these words:

…[T]he validity of such a waiver, and I should add that that is so of any waiver, is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.

After indicating that the effectiveness of a waiver required a fact-specific inquiry, Lamer J. added, at p. 74:

However, always relevant will be the fact that the accused is or is not represented by counsel, counsel’s experience, and, in my view of great importance in a country so varied as ours, the particular practice that has developed in the jurisdiction where the events are taking place.

18To begin the factual inquiry to determine whether there has been substantial compliance with section s. 536(2), one must look to the record. In this case, the relevant portions of the record provide as follows:

CLERK OF THE COURT: J.V., you are charged that on or about the 12^th day of September, 2004 at the Town of Cobalt in the said region, did commit a sexual assault on [K.F.], contrary to s. 271 of the Criminal Code. How does the Crown elect to proceed?

MS. REGIMBAL: As indicated on the screening form, the Crown is proceeding by way of indictment on the charge. Your Honour, I did take a few moments and explain to Mr. J.V. that the nature of the charge and election means that he has the option to choose whether or not he wishes to proceed to Superior Court or to have his trial here today. Verbally, he indicated his wish was to have his trial here today and get it over with, but perhaps the court can take a moment to explain that option to him. He did indicate this was for trial today. And the Crown has made up its witness list accordingly.

THE COURT: Okay. Thank you. That is the case, sir. You know that you could elect to proceed by way of judge and jury, or a judge of Superior Court alone or this court, and you prefer to proceed in this court here today.

J.V.: Yes.

THE COURT: Okay. So that will be your election as noted. And I gather you are entering a plea of not guilty.

J.V.: Yes.

THE COURT: Okay. Can I see the information briefly? You may proceed, Crown.

19The difficulty here is that the record says nothing about a preliminary inquiry. We do not know if the Crown, in her discussions with the appellant, gave him any explanation at all in relation to a preliminary inquiry.

20We have no information, and certainly nothing on the record, to suggest whether the appellant even knew what a preliminary inquiry was, let alone his entitlement to one. We can make no assumptions about his knowledge of the criminal process. His criminal record tells us nothing about his knowledge of the criminal process such that we can assume he was aware of his right to a preliminary inquiry. It may be that he entered guilty pleas on those other occasions. We simply do not know, and the record is insufficient to enable this court to make any such assumption.

21While in recent times there has been discussion about the possibility of eliminating preliminary inquiries from the criminal justice process, today they remain an integral part thereof.

22In these circumstances, I am of the view that there was no jurisdiction for the trial judge to proceed with the appellant’s trial, and on this ground alone there must be a new trial. Because there must be a new trial. I propose to deal with the other grounds of appeal raised only very briefly.

Did the trial judge err in not appointing counsel on behalf of the appellant under s. 486(2.3) of the Criminal Code? __________

23The complainant was under eighteen years of age at the time of trial. Section 486(2.3) provided:

In proceedings referred to in subsection (1.1), the accused shall not personally cross-examine a witness who at the time of the proceedings is under the age of eighteen years, unless the presiding judge, provincial court judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination, and if the accused is not personally conducting the cross-examination, the presiding judge, provincial court judge or justice shall appoint counsel for the purpose of conducting the cross-examination.

24While the manner in which section 486(2.3) was considered by the trial judge was less than satisfactory, I am of the view that no substantial wrong or miscarriage of justice occurred in the circumstances of this case as a result of his failure to appoint counsel. The complainant was sixteen years of age at the time of trial and consented to the appellant personally cross-examining her.

25I would dismiss this ground of appeal.

Did the trial judge err in failing to give adequate assistance to the unrepresented appellant? _________________________________

26It is a fine line that trial judges are required to walk in dealing with unrepresented and self-represented accused persons. Trial judges are to avoid any conduct that may be seen to favour one side over the other and to maintain their independence as between the two. This obligation must be balanced against the need to take steps to ensure that no miscarriage of justice occurs as a result of an unrepresented accused.

27As a majority of the Alberta Court of Appeal stated in R. v. Phillips (2003), 2003 ABCA 4, 172 C.C.C. (3d) 285 at paras. 22-23, aff’d (2003), 2003 SCC 57, 181 C.C.C. (3d) 321 (S.C.C.) with respect to unrepresented accused persons:

Their need for guidance varies depending on the crime, the facts, the defences raised and the accused’s sophistication. The judge’s advice must be interactive, tailored to the circumstances of the offence and the offender, with appropriate instruction at each stage of the trial.

How far a trial judge should go in assisting an accused is therefore a matter of judicial discretion[.] The overriding duty is to ensure that the unrepresented accused has a fair trial. [Citations omitted.]

28While this judge certainly could have been of more assistance to the appellant, in my view the appellant had a fair trial overall. This was a short and uncomplicated trial. The appellant was aware that it was important for him to discredit K.F.’s version of the events and he tried to do so, although perhaps not as effectively as counsel on his behalf might have done. For example, he led evidence about his relationships with other women and his lack of sexual aggressiveness in those other relationships. Further, he testified on his own behalf that his feelings for K.F.’s sister made his actions against K.F. unlikely.

29I would therefore dismiss this ground of appeal.

Did the trial judge’s conduct give rise to reasonable apprehension of bias?

30The test to establish reasonable apprehension of bias is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude”: see R. v. S. (R.D.) (1997), 1997 CanLII 324 (SCC), 118 C.C.C. (3d) 353 at para. 31 (S.C.C.). The onus is on the person alleging bias and the threshold for finding its existence is high.

31In this case, the appellant has not established that the trial judge’s conduct gave rise to a reasonable apprehension of bias. Much of this complaint relates to the trial judge’s comments to K.F. – comments I would consider to be perhaps a somewhat overzealous effort to put her at ease. I do not see these comments as giving rise to a reasonable apprehension of bias.

32I would dismiss this ground of appeal.

Did the trial judge err in admitting evidence of the complainant’s post-offence demeanor or in placing improper weight on that evidence, if admissible?___________________________________________________

33K.F.’s emotional upset was manifest the day following the assault; it was apparent to and noted by her family. Such evidence is admissible and may be used to support a complainant’s evidence of a sexual assault. See R. v. Boss (1988), 1988 CanLII 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.). The weight to be given this properly admissible evidence was exclusively a matter for the trial judge’s discretion.

34I would dismiss this ground of appeal.

Did the trial judge err in engaging in improper propensity reasoning?

35In my view, there is nothing in the trial judge’s reasons or the trial transcript to indicate that the trial judge viewed the appellant as the sort of person who would commit a sexual assault.

36I agree with the respondent’s submission on this point:

Though the Learned Trial Judge characterized the appellant’s behaviour and attitude on the night of the party as “arrogant”, it is submitted that this does not demonstrate that the Judge employed impermissible propensity reasoning.

37I would dismiss this ground of appeal.

Did the trial judge err in his application of the burden and standard of proof?

38In my view the trial judge’s reasons, when considered in their entirety, demonstrate that he clearly understood the burden and standard of proof. He was well aware that his task involved more than simply choosing which version of events he preferred.

39I would dismiss this ground of appeal.

40In the result, I would allow the appeal and order a new trial.