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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Feldman, Gillese and Hoy JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
P.E.M.
Applicant
R. Graham Zoppi, for the applicant
Deborah Krick, for the respondent
Heard and released orally: April 20, 2012
On appeal from the conviction entered on May 11, 2005 by Justice Russel J. Otter of the Ontario Court of Justice and upheld by Justice David Stinson of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated September 14, 2007.
ENDORSEMENT
1The appellant seeks leave to appeal from the decision of the summary conviction appeal judge which dismissed the appellant’s appeal from conviction for sexual interference of his daughter at age 11. The interference for which he was convicted was kissing and licking her right breast.
2At trial the appellant and the complainant both testified. The appellant denied the interference. The trial judge acknowledged that the complainant had significant credibility problems, but he was satisfied beyond a reasonable doubt because of physical corroborating evidence of DNA, as well as cuts on the inside of her mouth, and observations of her demeanour at the time.
3When the complainant was 16 years old and had gone to live with Victor who was her half-brother through her father, the complainant swore an affidavit recanting her allegations against her father, blaming her mother for pressuring her into making the accusation. She was taken to a lawyer to swear the affidavit.
4At age 20, for the purpose of this appeal, she was cross-examined on the affidavit and, at that time, to the surprise of the Crown and defence counsel, she resiled from the recantation blaming her father and step brother and making further allegations against her father regarding illegal drug activity. For the purpose of this appeal, the appellant and respondent filed further affidavit evidence responding to the complainant’s new allegations. The Crown concedes that leave to appeal should be granted but submits that the fresh evidence should not be admitted under criteria 3 and 4 of the Palmer test.
5In our view, this is a case referred to by Rosenberg J.A. in R. v. Babinsky, 1999 CanLII 3718 (ON CA), [1999] O.J. No. 1407 at para. 49, where, if the evidence were to be admitted, being contradictory, it would be because it may “have substantial impeachment value if made available to a reasonable trier of fact”.
6In our view, however, this is not a case where the evidence should be admitted under criterion No. 4 of the Palmer test because it would not have affected the result of the trial. We say that for the following reason.
7This was a case where the complainant’s credibility was a central issue and the trial judge was fully aware of the complainant’s history of dishonesty. He began his assessment of her credibility by describing the complainant as “an emotionally troubled young lady that is receiving therapy, psychiatric assistance and medication” who herself had lied to the authorities including the Children’s Aid Society. The trial judge convicted on the count for which there was corroboration of the complainant’s account, including the contemporaneous observation of the complainant’s demeanour following the event by her mother and another third party witness. The appellant’s DNA found on the complainant’s right breast and the physical evidence that the cuts to the inside of her lower lip independently observed and noted by the sexual assault nurse who testified at trial were consistent with the complainant’s account of forceful French kissing and licking her breast by the appellant. In these circumstances, the fresh evidence could not reasonably affect the verdict.
8Accordingly, leave to appeal is granted, but the appeal is dismissed.
“K. Feldman J.A.”
“E.E. Gillese J.A.”
“Alexandra Hoy J.A.”
