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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

WARNING

THIS IS AN APPEAL UNDER THE

YOUNG OFFENDERS ACT

AND IS SUBJECT TO S. 38 OF THE ACT WHICH PROVIDES:

38.(1) Subject to this section, no person shall publish by any means any report

(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

(b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence

in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

(2) Every one who contravenes subsection (1),

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.G., 2016 ONCA 316

DATE: 20160502

DOCKET: C56860

Strathy C.J.O., Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.G.

Appellant

Daniel J. Brodsky, for the appellant

Shawn Porter, for the respondent

Heard: April 22, 2016

On appeal from the conviction entered on December 13, 2012 by Justice Joyce Elder of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

1The appellant was convicted of the sexual assault of C.D. The Crown alleged that in 1984, he and K.I., the complainant’s cousin, had intercourse with the then-8-year-old complainant at her home while K.I. was babysitting her. The appellant was 13 years old at the time.

2The appellant testified at trial in 2012 that he was at the complainant’s home on one occasion when he was 13. He confirmed that K.I. was babysitting the complainant, and testified that K.I.’s younger brother was also there. He recalled both K.I. and the younger brother going into the complainant’s bedroom, but denied knowing that a sexual assault had occurred, or that he had sexually assaulted the complainant.

3The trial judge found that the appellant was not a credible witness and concluded that the appellant’s guilt had been established beyond a reasonable doubt.

4The trial judge erred in two respects in coming to these conclusions:

• She drew an adverse inference as to the appellant’s credibility from his pre-trial silence concerning the younger brother’s presence; and

• She used K.I.’s guilty plea to sexual assault of the complainant to corroborate the evidence of the complainant.

5The Crown concedes that it would be an error to draw an adverse inference from an accused’s pre-trial silence, but submits that the trial judge did not draw such an inference. The Crown submits that the trial judge found that the appellant was not credible because of his selective memory and inconsistencies in his testimony about the younger brother’s role in the incident.

6The trial judge’s reasons make it clear that she did, in fact, draw an adverse inference from the appellant’s pre-trial silence:

I found [C.G.’s] explanation for remembering K.I. and [the younger brother] going into the bedroom with the complainant difficult to follow. When this is coupled with his admission that he had never previously disclosed that K.I.’s brother was there and might have been involved, I do not find C.G. to be a credible witness. [Emphasis added.]

7This was an error. The trial judge also erred in using K.I.’s guilty plea to corroborate the evidence of the complainant. Had K.I. been available to be called as a witness – which he was not, as he died before the appellant’s trial – his guilty plea would have been relevant to his credibility and to his own involvement in the sexual assault. However, a guilty plea by a co-accused, not called at trial, cannot be used to support the Crown’s case.

8For example, in R. v. C. (P.), 2015 ONCA 30, 321 C.C.C. (3d) 49, a young offender was tried separately from four adults on a charge that he had aided and abetted a murder. The four adults pleaded guilty – one to murder, two to manslaughter, and one to aggravated assault. The trial judge instructed the jury that the guilty plea to murder by one of the four adults could be used as evidence against the accused. On appeal, this court held, at paras. 43-46, that the trial judge had erred:

The trial judge explained that the determination that Xiao had committed murder was the logical first step in deciding whether the appellant had aided and abetted Xiao in committing an unlawful act. She told the jury they could use that plea and conviction to conclude that Xiao had committed murder.

The trial judge erred in law when she told the jury that it could use Xiao’s guilty plea and conviction as evidence against the appellant. See R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3; R. v. MacGregor (1981), 1981 CanLII 3351 (ON CA), 64 C.C.C. (2d) 353 (Ont. C.A.); R. v. Pentiluk (1974), 1974 CanLII 1560 (ON CA), 21 C.C.C. (2d) 87 (C.A.), at 92.

Xiao’s guilty plea was no more than hearsay evidence that Xiao had committed murder, and could not be considered in determining the appellant’s guilt. In R. v. MacGregor, Martin J.A. said, at pp. 357-58:

Admittedly, it was an error for the trial judge to fail to instruct the jury that in considering the case against the appellant they should disregard the pleas of guilty of manslaughter by the co-accused and that those pleas were not in any way to be taken into account in considering the case against the appellant.

This statement of the law was adopted by the Supreme Court in R. v. Simpson.

9In the present case, it was an error for the trial judge to rely on K.I.’s guilty plea as support for the complainant’s version of events.

10Given that this case turned on credibility, the Crown has not established that the verdict would necessarily have been the same without the two errors identified above – one error undermining the appellant’s credibility, the other enhancing the complainant’s credibility.

11In the result, the appeal is allowed, the conviction set aside, and a new trial ordered.