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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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:
P. C. C. (Appellant) and HER MAJESTY THE QUEEN (Respondent)
BEFORE:
SHARPE, SIMMONS and CRONK JJ.A.
COUNSEL:
J. Navarrete
for the appellant
C. Jane Arnup
for the respondent
HEARD:
March 20, 2007
On appeal from the convictions entered by Justice B.W. Hurley of the Superior Court of Justice on March 15, 2001.
E N D O R S E M E N T
1The appellant was convicted by Hurley J. of sexual assault and sexual touching. At the time of the relevant events, the appellant was the common-law partner of the complainant’s mother.
2The main issue on appeal is whether the trial judge erred in admitting out-of-court statements made by the five-year-old complainant to her foster mother for the truth of their content based on the principled exception to the hearsay rule. The appellant contends that the out-of-court statements were neither reasonably necessary nor reliable.
3Dealing first with necessity, the appellant submits that since the complainant testified at trial, provided what appears to be a full and frank account of alleged physical abuse by the appellant, and confirmed that she had recounted all the things the appellant did to her (which did not include any elements of sexual abuse), the trial judge erred in holding that admitting the out-of-court statements was reasonably necessary.
4We disagree. The trial judge made an express finding that the complainant “was not at all inclined to describe the incidents she described to [her foster mother]” while testifying in court. Given the complainant’s evidence that she could not remember all the things she told her foster mother and that she told her foster mother the truth, it was open to the trial judge to make this finding. Moreover, the trial judge had the distinct advantage of being able to see the manner in which this very young complainant testified. In all the circumstances, we are not persuaded that there is any basis to interfere with his conclusion that admission of the out-of-court statements was reasonably necessary.
5Turning to reliability, the appellant submits that the circumstances under which the out-of-court statements were made did not offer a sufficient guarantee of trustworthiness to justify their admission. He points to evidence that the complainant’s foster mother asked her questions about the appellant; that there was an ongoing custody dispute between the complainant’s mother, her grandmother and her biological father at the time of the complainant’s disclosures; that the complainant’s first disclosure may have come shortly after a visit with her father and that the complainant’s mother had complained to authorities about possible sexual abuse by her biological father. The appellant also relies on various alleged frailties in the foster mother’s testimony.
6We do not accept these submissions. The trial judge made specific findings rejecting the arguments that were made to him concerning the presence of suspicious circumstances relating to the complainant’s disclosures and concerning alleged weaknesses in the foster mother’s testimony. Further, he relied on four factors as providing a sufficient circumstantial guarantee of trustworthiness to justify the admission of the out-of-court statements: i) five year-olds do not generally have any knowledge of the type of sexual conduct that the complainant attributed to the appellant; ii) similarly, five year-olds do not generally have the capacity to fabricate the explicit descriptions of sexual conduct that were provided by the complainant; iii) the foster mother’s description of the pattern of gradual disclosure had the ring of truth; and iv) he was satisfied that the foster mother did not try to persuade the complainant but, rather, simply encouraged the complainant in an indirect and unimposing way.
7While we agree that it would have been open to the trial judge to take a different view of the evidence, we see no basis for interfering with his findings or with his conclusion that the out-of-court statements met the reliability criterion.
8In addition to the main issue on appeal, the appellant argued that the trial judge erred in entering the foster mother’s notes of the out-of-court statements as exhibits on the trial. While we agree that it would have been preferable had the trial judge not done so, we see no indication that the trial judge used the notes for an impermissible purpose. In addition, we note that defence counsel at trial did not object to this procedure. In the circumstances, we would not give effect to this ground of appeal.
9Finally, the appellant submitted that the verdicts are unreasonable. We disagree. On our review of the record, it was open to the trial judge to make the findings that he did concerning the credibility of the complainant’s mother and her foster mother. Further, having admitted the complainant’s out-of-court statements, it was open to the trial judge to rely on them even in the absence of corroboration. Accordingly, we reject this ground of appeal.
10The appeal is therefore dismissed.
“Robert J. Sharpe J.A.”
“Janet Simmons J.A.”
“E.A. Cronk J.A.”
