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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

CITATION: R. v. M.C.J., 2013 ONCA 205

DATE: 20130403

DOCKET: C54565

Goudge, Simmons and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. C. J.

Appellant

Brian H. Greenspan and Naomi M. Lutes, for the appellant

Suhail A.Q. Akhtar, for the respondent

Heard: March 13, 2013

On appeal from the convictions entered on August 22, 2011 by Justice Alan D. Cooper of the Ontario Court of Justice.

By the Court:

[1] The appellant appeals from his convictions for a series of sexual offences allegedly committed against two nieces, L.J. and L.H., and a great-niece, K.J.

[2] The alleged offences involving L.J. spanned a time-frame from 1987 to 1992. The incidents involving L.H. allegedly occurred in 1998 and 2005, and the incidents involving K.J. allegedly occurred sometime between 2004 and 2007. All of the allegations were reported in 2009.

[3] The convictions were entered following a trial before a judge sitting alone. At trial, defence counsel challenged the credibility and reliability of the complainants’ allegations based on: i) the complainants’ delay in reporting their allegations; ii) developments in the complainants’ allegations between the time they were first reported and trial; and iii) alleged vagaries, inconsistencies and improbabilities in the complainants’ evidence. In addition, the defence called three witnesses, all family members, who testified about their observations of the appellant’s interactions with the complainants and about their own interactions with the appellant. The appellant did not testify.

[4] On appeal to this court, the appellant alleges numerous errors in the trial judge’s assessment of the complainants’ evidence and also challenges the adequacy of the reasons for judgment.

[5] In our view, the appeal turns primarily on the emphasized portion of the following extract from the trial judge’s reasons. This extract appears at the outset of the trial judge’s analysis of the charges involving the complainant, L.J., which were the first set of charges he analyzed:

The defence called [J.G.] as a witness, and it was her opinion that the complaints by [L.J.] and [L.H.] stemmed from their desire to seek attention. Implicit in this evidence is that the allegations are untrue.

This court had the opportunity to see first hand these two witnesses as they testified. Both had great difficulty recounting their complaints, especially [L.H.], who at times seemed to be emotionally paralyzed by the ordeal.

All three complainants had to testify about a family member, which in my view makes their allegations more credible than a complaint against a non-family member. Sexual allegations in a family context are explosive and threaten to destroy the entire fabric of the relationship. Such complaints often divide families, and that is what happened in this case. [Emphasis added.]

[6] The appellant submits that the impugned passage reflects an improper approach to the assessment of the complainants’ credibility, as it relies on the complainants’ relationship to the appellant as a general factor supporting their credibility. The Crown responds that the impugned passage must be read in context. According to the Crown, when that is done, the passage reflects nothing more than an experienced trial judge commenting on the lack of motive to fabricate, rather than a statement of a general principle.

[7] Although we agree that the passage must be read in context, we are unable to accept the Crown’s submission.

[8] We begin by noting that it was unnecessary for the trial judge to formulate a response to J.G.’s evidence, because J.G.’s bare opinion about whether any of the complainants had a motive to lie was inadmissible and therefore irrelevant to the issues before the court.

[9] More importantly however, on its face, the impugned passage expresses the view that, because of the difficulties in family relationships that sexual allegations often create, allegations of sexual misconduct made against a family member are inherently more credible than allegations of sexual misconduct made against a non-family member.

[10] As such, the passage establishes a starting point – or analytical framework – for assessing the credibility of the complainants’ allegations premised on the notion that, because of the family context in which the allegations were made, they were more credible than similar allegations made against a non-family member would be. Such an approach is clearly improper and, standing alone, requires that we set aside the convictions and order a new trial.

[11] In reaching this conclusion, we acknowledge that it would have been open to the trial judge to consider whether the family relationship and family dynamics particular to this case made it difficult for any of the complainants to testify and to take that into account in assessing a particular complainant’s credibility.[^1]

[12] However, that is not what the trial judge said. Instead, after referring to the fact that all three complainants had to testify against a family member, he stated that allegations of sexual misconduct made in that context are more credible than allegations of sexual misconduct made against a non-family member. A conviction premised on this analytical framework simply cannot be allowed to stand.

[13] At the outset of our reasons, we said this appeal turns primarily on the impugned passage. We wish to observe as well that, although the Crown’s case at trial stood largely unchallenged by defence evidence, there were nonetheless problems with the complainants’ evidence mandating a careful examination of each complainant’s reliability and credibility.

[14] For example, although L.H. maintained that, on one occasion, the appellant had touched her leg with his penis from behind her as she climbed some stairs, she acknowledged she did not see his penis and was unable to explain why she believed that it was the appellant’s penis that had touched her. In closing submissions, the trial Crown effectively acknowledged that this evidence may not have been sufficiently reliable to support a conviction for sexual assault (as opposed to simple assault). Despite the trial Crown’s submissions, the trial judge accepted this allegation without comment or explanation.

[15] As another example, there were “developments” in the allegations of all three complainants between their statements to the police and their trial evidence – all three complainants remembered additional incidents after giving their statements to the police.[^2] The trial judge referred to and accepted the evidence regarding two of these incidents, largely because of the particular complainant’s demeanour.

[16] Assuming a proper approach to the assessment of each complainant’s credibility, we agree that these problems with the Crown’s evidence were matters uniquely for determination by the trial judge. We refer to these problems simply to observe that this is not a case in which we can overlook deficiencies in the trial judge’s reasons based on the strength of the Crown’s case or based on our own review of the record.

[17] Based on the foregoing reasons, the appeal is allowed, the convictions are set aside and a new trial is ordered.

Released: “STG” April 3, 2013

“S.T. Goudge J.A.”

“Janet Simmons J.A.”

“M. Tulloch J.A.”

[^1]: We acknowledge that the trial judge did so in relation to K.J.’s evidence when, in considering the issue of delayed reporting at para. 66 of his reasons, he referred to the fact that K.J.’s cousin did not believe K.J.’s allegation.

[^2]: After their respective police statements, L.J. remembered there had been digital penetration during her alleged sexual assault; L.H. remembered the appellant had touched her breasts while she was sleeping; K.J. remembered the appellant had rubbed up against her while she was sitting on a Sea-Doo.