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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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 File and Parties
COURT OF APPEAL FOR ONTARIO
LASKIN, SIMMONS and GILLESE JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN Respondent
and
V.G. Appellant
Paul Calarco for the appellant
John McInnis for the respondent
Heard and released orally: June 7, 2007
On the appeal from the conviction entered on August 17, 2005, and the sentence imposed on September 14, 2005, by Justice W. Brian Trafford of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1V.G. appeals his convictions on two grounds: first, the trial judge erred in ruling the proposed opinion evidence of a psychologist, Dr. Moore, inadmissible; and second, the trial judge erred in admitting the child’s out of court statement.
1) Dr. Moore’s evidence
2The trial judge ruled that Dr. Moore’s proposed testimony did not meet the necessity criterion in Mohan. V.G. contends that the trial judge misunderstood the purpose of Dr. Moore’s testimony. He says that Dr. Moore was not going to give an opinion on the threshold reliability of the child’s evidence, but on the methodology for making that determination. In our view, the trial judge’s reasons show that he understood the purpose of Dr. Moore’s testimony. He did not err in concluding that Dr. Moore’s evidence was not outside the experience or knowledge of a trial judge and thus was unnecessary.
3The trial judge’s conclusion is entirely consistent with the reasons of Rosenberg J.A. in R. v. C.T., where this court also upheld a trial judge’s decision to hold Dr. Moore’s evidence inadmissible. We therefore do not accept the appellant’s submission that the trial judge erred in refusing to admit Dr. Moore’s testimony.
2) Admissibility of the out of court statement
4V.G. submits that because of the numerous contradictions in the child’s evidence, the trial judge erred in holding that the test of threshold reliability had been met. As part of this submission, V.G. argues that the trial judge did not determine whether the child knew the meaning of truth and falsehood. We do not accept the appellant’s submission.
5Reading the trial judge’s reasons as a whole, we are satisfied that he was alert to the hearsay dangers present in this case. His reasons also show that he was satisfied that these dangers were overcome by the following considerations: the appellant had an opportunity for full contemporaneous cross-examination at the preliminary inquiry; the videotape provided evidence of the child’s demeanour; and the trial judge himself was persuaded that there was sufficient evidence the child knew the difference between truth and falsehood, the nature of a promise and the need to tell the truth in court. In the light of these considerations, we see no error in the trial judge’s conclusion that the out-of-court statement met the test of threshold reliability.
6Accordingly the conviction appeal is dismissed.
“John Laskin J.A.”
“J. Simmons J.A.”
“E.E. Gillese J.A,”
