WARNING
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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Weiler, Gillese and Blair JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
P.G.
Appellant
Michael S. Mandelcorn and R. Michael Rode, for the appellant
Matthew Asma, for the respondent
Heard and released orally: January 13, 2011
On appeal from the conviction entered on April 12, 2007 and the sentence imposed on May 23, 2007 by Justice Rommel G. Masse of the Ontario Court of Justice.
ENDORSEMENT
1The appellant appeals his conviction for aggravated assault, assault with a weapon and obstruction of justice. Although his notice of appeal also seeks leave to appeal sentence, leave was not pursued and is dismissed as abandoned.
2Inasmuch as the complainant was a hostile witness at trial, counsel for the Crown sought to have two out of court statements the complainant made admitted into evidence on the basis of the principled exception to the hearsay rule. The first was the complainant’s out of court statement made at the hospital to Nurse Cowan admitted into evidence as a principled exception to the hearsay rule. The second was the complainant’s video-taped statement made to the police. The necessity of admitting the statements was not contested. There, as here, the issue is the threshold reliability of the statements which the trial judge admitted into evidence.
3The appellant submits that the threshold of reliability was not met for a compendium of reasons. One is that the notes of Nurse Cowan contained the wrong date. Another is that Nurse Cowan was an agent of the police or not a disinterested party. Nurse Cowan did not attend solely to treat the complainant but obtained the complainant’s consent to take pictures of her injuries and to report the matter to the police. There is no merit to either of these arguments and we dismiss them.
4The appellant further submits that the trial judge erred in holding that the statement to Nurse Cowan was reliable because both she and complainant were available for cross-examination at trial. The complainant testified at trial that she could not remember making the statements and because she was “drugged up” on painkillers. Since the complainant could not remember what she said, the appellant submits that any cross-examination of her with regard to these statements could not be effective.
5In our opinion, the trial judge did not err in noting that both Nurse Cowan and the complainant were available to be cross-examined at trial. Nurse Cowan’s testimony at trial was relevant to proving that the complainant made the statements to her despite the complainant’s claim that she could not remember doing so. The complainant’s claim that she could not recall what she said at the hospital was doubtful given that she gave a very similar statement to the police some months later. Furthermore, there is no general rule that a hearsay statement cannot be admitted in the absence of an opportunity to meaningfully cross-examine a declarant. A declarant’s lack of memory of the prior statement is merely one factor to take into account when determining the reliability of the statement. The trial judge found that the complainant made the statements while she was still traumatized by the attack and was therefore not in a position to be concocting the statement.
6The determination of whether these two hearsay statements were sufficiently reliable as to be admissible required the trial judge to perform a full assessment of the facts. His decision is therefore entitled to deference. He was clearly cautious about relying on evidence from a complainant who later recanted at trial, but found that her statements to Nurse Cowan and the police were truthful.
7The appellant has not identified any material misapprehension of the evidence or error in principle that would require this court to interfere with the trial judge’s decision. The trial judge gave extensive and persuasive reasons as to why the complainant’s statements to the nurse and to the police were reliable.
8Accordingly, the appeal is dismissed.
“K.M. Weiler J.A.”
“E.E. Gillese J.A.”
“R.A. Blair J.A.”
