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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Rosenberg, Goudge and Simmons JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
M.F.
Appellant
Joseph Di Luca, for the appellant
Greg Skerkowski, for the respondent
Heard: April 15, 2009
On appeal from the convictions entered by Justice E. Ready of the Ontario Court of Justice on May 17, 2007 and from the sentence imposed on July 13, 2007.
Simmons J.A.:
1The appellant was charged with six offences involving allegations of sexual assault and sexual interference against three complainants, all of whom were the appellant’s nieces by marriage. Two of the complainants, AMS and ATS, were sisters. Their allegations were historical, involving time frames spanning between 1994 and 1999 when they were between the ages of nine and fourteen, and five and ten, respectively. The third complainant, JC, is a cousin of the first two complainants. Her allegations related to events that allegedly occurred on September 17, 2005, when she was fifteen years old.
2At trial, the Crown applied to have the evidence of the three complainants applied as similar fact evidence and also to lead the evidence of the sister of the S complainants, ALS, as similar fact evidence. Ready J. dismissed this application, holding among other things, that the Crown had not discharged its burden of negativing collusion because it had not explored with all of the proposed similar fact witnesses, the issue of whether their perceptions of the actions of their uncle were tainted by their discussions with one another.
3Following the trial, the appellant was acquitted of the two charges relating to AMS, but convicted of the remaining charges relating to ATS and JC. He was later sentenced to twelve months imprisonment plus probation.
4In her reasons for judgment, the trial judge noted that AMS demonstrated vindictiveness towards the appellant, the basis for which had not been fully explored at trial. As well, AMS acknowledged discussing her allegations a number of times with her mother and her sisters and was unable to say whether those discussions affected her perceptions. In the circumstances, the trial judge had concerns about both the credibility and reliability of AMS’s evidence.
5Concerning the remaining charges, despite certain frailties in their testimony, the trial judge accepted the evidence of ATS and JC. Although the appellant testified and denied their allegations, the trial judge rejected his evidence for three main reasons. First, she found him evasive when responding to questions about whether he owned or watched pornography. Second, she concluded he was evasive in responding to questions about whether he found his nieces attractive. Third, she found him evasive in responding to questions about whether he was ever alone with his nieces.
6The appellant appeals against conviction and seeks leave to appeal sentence. He raises two issues on his conviction appeal:
i) The trial judge erred by failing to consider the evidence of collusion in her reasons for conviction; and
ii) The trial judge erred by apply a higher standard of scrutiny to the defence evidence as compared to the Crown’s evidence.
7For reasons that I will explain, I would allow the conviction appeal and order a new trial. It is therefore unnecessary that I address the request for leave to appeal sentence.
I. Did the trial judge err by failing to consider evidence of collusion in her reasons for conviction?
8I would not give effect to this ground of appeal. Counsel for the appellant fairly acknowledged that this ground of appeal relates to the two convictions relating to ATS and not to the convictions relating to JC I agree. The convictions relating to JC arose from events that occurred on September 17, 2005. JC made a videotaped statement to the police setting out her allegations on September 22, 2005. There was no evidence at trial that JC spoke to the other complainants prior to making her statement to the police; moreover, JC was not cross-examined about that possibility. In these circumstances, there is no air of reality to the suggestion that JC’s allegations were tainted by collusion.
9However, the allegations made by ATS and by her sister AMS related to events that occurred much earlier, in time frames between 1994 and 1999. In her evidence, AMS described two separate incidents of alleged sexual touching by the appellant. She said she talked to all of her sisters about the abuse. She specifically recalled speaking to ALS and said that they decided to tell their mother that the appellant was a pervert and that he touched them. However, she acknowledged that she spoke to their mother in a joking manner and their mother did not believe her.
10AMS also testified that she spoke to her sisters after she found out about JC’s allegations; they subsequently went to the police to report their allegations in February 2006.
11On the similar fact evidence application made by the Crown, ALS testified about various incidents of alleged sexual misconduct by the appellant against her. She said she spoke to AMS and they decided to tell their mother. Their mother did not believe them, but rather responded that the appellant was probably just play fighting, or that the touching was accidental. ALS also acknowledged that her sister AMS told her that JC had complained to the police and that she talked to her three sisters, AMS, ATS, and ASS, about what happened with the appellant for almost an hour before deciding they should tell the police.
12Despite the evidence of AMS and ALS indicating that ATS was involved in discussions about alleged abuse by the appellant before reporting her allegations to the police, I am not persuaded that the trial judge committed a reversible error by failing to allude to this evidence in her reasons for conviction. ATS was not cross-examined about these conversations; nor was she cross-examined about the possibility of collusion or tainting. Particularly in these circumstances, it was open to the trial judge to conclude that ATS’s evidence was neither tainted nor the product of collusion.
13The trial judge's reasons on the similar fact application and on the trial proper demonstrate that she was alive to the issues of collusion and the possibility the sisters had tainted each other’s evidence. She dismissed the similar fact evidence application and the charges relating to AMS based in part on concerns about these issues. Accordingly, although it would have been preferable had the trial judge referred explicitly to the issues of collusion and tainting when dealing with the charges relating to ATS, considering the trial judge's reasons as a whole and in the context of the evidence at trial, it is only reasonable to conclude that she made a finding that ATS’s evidence was neither tainted nor the product of collusion.
II. Did the trial judge err by apply a higher standard of scrutiny to the defence evidence as compared to the Crown’s evidence?
14The appellant argues that the trial judge erred by focusing on two insignificant issues as part of the basis for rejecting the appellant's evidence while, at the same time, forgiving significant frailties in the complainants’ evidence and failing to subject the complainants’ testimony to meaningful critical examination.
15In my opinion, much of the appellant's argument is in reality a request that this court re-weigh the evidence and make different findings of fact. However, the appellant also submitted that the trial judge erred by identifying the appellant's difficulty in answering questions about whether he found his nieces attractive as a basis for rejecting his evidence. I agree with this submission.
16The portion of the appellant's cross-examination in which he was asked questions about whether he thought his nieces were attractive follows:
Q. Sir, you think [JC] is attractive?
A. I - - she's - - she's a - - she's a - - she - - she was a really good girl all her life and she played sport and she's - - she's, you know, she's - - she's fine. I'm saying that's anything wrong with her, no. She's...
Q. Can you answer my question please, sir.
A. Yes. I mean she's - - I - - in a way where she's - - she's a good - - I mean she's - - I - - I don't know how to answer this, because it's - - what do you mean by attractive, like?
Q. Do you think that [JC] is unattractive?
A. I don't think so, no.
Q. So you understand what I mean by unattractive?
A. I understand, yes.
Q. So you had difficulties understanding attractive?
A. Well I mean - - she - - she is - - she is a good-looking girl, yeah, she is.
Q. Do you think [AMS] is attractive?
A. I mean they're my nieces. I can't say they are ugly or anything like that, no.
Q. Do you think [ATS] is attractive?
A. Same answer, they're my nieces. I've - - I've known these kids since they were little. I mean I - - I - - you know, it's - - they're - - I - - I don't know what to say like, I mean, I've known him all my life, since they were small. And they grew up and I've, you know, it's - - I can't - - yes, they're - - they're - - they're nice kids.
Q. Do you think [ALS] is attractive?
A. Again, same answer yes, they're - - they're - - they're nice kids, yes.
17The trial judge identified the appellant's difficulty in answering these questions as one of the bases for rejecting his evidence in her reasons involving the charges relating to both ATS and JC. In relation to the charges relating to ATS, the trial judge said:
Why have I come to this conclusion? The R. v. W. (D.) analysis, I find the defence evidence is neither believable and in the alternate it does not leave me in reasonable doubt. [The appellant] was evasive to questions, for example, "Do you watch porn on TV?" His answer, "I don't own porn." And then he finally, after being alerted that that was not the question, he finally agreed that he does watch it. He was not, therefore, forthright with the court.
He was asked if he found his niece, [JC], to be attractive. He had a great deal of difficulty answering a simple question. He had difficulty understanding, it seems, what the word attractive versus unattractive meant. Again, I found him to be evasive and he was not forthright. I asked - he was asked if he thought the girls generally were attractive. Again, there was a roundabout evasive answer. Finally he settled upon, "They are my nieces." Again, I find this to be evasive; I find it to lack forthrightness to the court.
He was evasive in respect to questions about ever being alone with his nieces during the nine years that he was at the [M] address. First he said he was never alone over the nine years. Finally he said - he conceded that there was a possibility he was alone with them downstairs. Again, that was always conditional. He said, but his wife [T] would be there or [A] would be there. Again, I found that he was not being forthright with the court. He was being rather evasive to questions.
18In relation to the charges relating to JC, the trial judge said:
Why have I come to this conclusion? On the R. v. W. (D.) analysis, I neither believe the accused, nor does his evidence raise reasonable doubt. The accused was evasive to questions in respect to watching pornography and whether JC was attractive. Therefore, I find that he is not being forthright with the court. He is not credible.
19There are at least two problems with the line of questions relating to whether the appellant found his nieces to be attractive. Because of these problems, the questions were unfair to the appellant and the trial judge should not have relied upon the appellant’s difficulty in answering these questions in assessing his credibility.
20First, the questions are ambiguous. It is unclear from the questions whether the Crown was using the term “attractive” to mean ‘pretty’ or ‘sexually attractive’. In the context of a trial involving allegations of sexual misconduct, such ambiguity is extremely unfair to an accused person.
21Because of their inherent ambiguity, from an accused person's perspective, there can be no right answer to such questions. An accused person who thinks his or her nieces are pretty could properly harbour concerns that an affirmative answer would be taken as an acknowledgment of sexual attraction and could lead to an inference that he or she was more likely to have committed the crime charged. Although such an inference would be improper in many if not most circumstances, an accused person would have no way of knowing whether it might be drawn because of the ambiguity of the question.
22Further, the same accused person could equally have concerns that a negative answer could be viewed as patently false. As the question could properly be taken as meaning pretty, a negative answer might be viewed as an obvious lie and as an attempt to avoid responsibility.
23By the same token, an accused person who does not think his or her nieces are pretty, could find it difficult, if not impossible, to publicly acknowledge that view. Finally, it would be apparent to many accused that any request for clarification of this type question could be viewed as evasiveness, as happened here.
24Second, whatever their meaning, the questions are essentially irrelevant. On one reading of the line of questions, they were directed at determining whether the appellant considered his nieces to be pretty. Such a line of questioning would appear to be premised on a stereotypical assumption that only pretty females are sexually assaulted. There is no empirical support for such an assumption and questions about whether the appellant considered his nieces pretty were therefore wholly irrelevant to the issues at the trial.
25On another reading of this line of questions, they were directed at determining if the appellant found his nieces sexually attractive. Except perhaps in circumstances where a particular crime involves sexually deviant behaviour, e.g. paedophilia, the fact that one person finds another sexually attractive, does not make it more likely that the first person sexually assaulted the second person. Even if such questions might be viewed as being marginally relevant, the risk of attributing undue weight to a positive answer should, in most circumstances, mandate their exclusion. In R. v. Moose (2004), 2004 MBCA 176, 190 C.C.C. (3d) 521, at paras. 22-23, the Manitoba Court of Appeal said this about a similar line of questioning:
[T]he trial judge was in error in relying upon the accused’s evasive answers to improper questions as the basis for rejecting his testimony. Assuming a positive answer, where does the question and answer lead? It does not follow that when a man finds a woman attractive, a sexual assault is likely to occur.
In my view, the questions and answers were indeed irrelevant for they do not tend to prove the issue before the court. Even if, on a broad interpretation of the inclusionary principle, it could be argued that the questions and answers constitute relevant evidence, it should be excluded because of its tenuous value and because it is unfairly prejudicial to the accused. See E. G. Ewaschuk, Criminal Pleadings & Practice in Canada, loose-leaf, 2d ed. (Aurora: Canada Law Book Inc., 2004) vol. 1 at para. 16:12010.
26In this case, AMS was between five and ten years old at the time the alleged misconduct occurred. Had the questions to the appellant being directed at determining whether he found her sexually attractive at those ages when the misconduct allegedly occurred, they may have been relevant. However, framed as referring to whether the appellant found any of his nieces attractive at the time of trial, the questions were improper and the trial judge erred in relying on the appellant’s answers to them as a basis for rejecting his evidence.
27In relation to the charges against ATS the trial judge identified two other reasons for rejecting the appellant’s evidence; his evasiveness in answering questions as to whether he was ever alone with his nieces, and his apparent evasiveness as to whether he watched pornography. In relation to the charges against JC, she identified one other reason; his answer to the question whether he watched pornography. Considering the evidence and the trial judge’s reasons as a whole, it is impossible to say what would have been the result had the trial judge not given significant weight to the improper questions and the appellant’s attempted answers. In the circumstances, I see no option but to order a new trial.
Disposition
28Based on the foregoing reasons, I would allow the appeal, set aside the convictions and order a new trial.
RELEASED: August 19, 2009 “STG”
“Simmons J.A.”
“I agree M. Rosenberg J.A.”
“I agree S.T. Goudge J.A.”
