WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(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.

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. P.M.C, 2016 ONCA 829

DATE: 20161107

DOCKET: C60705 & C60581

Laskin, Sharpe and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.M.C.

Appellant

Phillip Millar, for the appellant

Rochelle Direnfeld, for the respondent

Heard: October 26, 2016

On appeal from the conviction entered on January 9, 2015 and the sentence imposed on May 15, 2015 by Justice John A. Desotti of the Superior Court of Justice, sitting without a jury, with reasons reported at 2015 ONSC 63

By the Court:

1The appellant appeals his convictions on 26 counts of sexual assault and sexual touching committed when he was an adult with respect to his stepdaughter, and on 26 counts of indecent assault and gross indecency committed when he was a young offender with respect to three young females. All allegations were historic. The adult offences were allegedly committed when the appellant was 41 to 48 years old and his stepdaughters, “K.T.” and “J.T.”, were between 5 and 11 years old. For all but two of the alleged young offender offences, the Crown could not prove that the appellant was older than 13 at the time of the alleged offences. The complainants “L.C.”, “P.B.” and “K.A.” were between 5 and 9 years old. Two of the alleged young offender offences were proven by the Crown to have occurred after the appellant’s fourteenth birthday, when the complainant K.A. was nine or ten years old.

2The respondent Crown concedes that 24 of the 26 young offender convictions must be set aside, as the allegations in those counts concerned events that could not be proven to have occurred after the appellant’s 14th birthday. Contrary to the notice the Crown filed, pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1(the “YCJA”) the Crown could not seek an adult sentence for those counts. As a consequence, the appellant’s election of a trial before the Superior Court was invalid, as the court had no jurisdiction to try him on those counts.

3The appellant raises three principal grounds of appeal relating to the remaining counts.

4First, the appellant submits that the trial judge erred by conducting the trials on the adult and the young offender indictments simultaneously and, in effect, as a single trial.

5Second, the appellant submits that the trial judge erred in admitting evidence of the young offender counts as similar fact evidence on the adult counts, and evidence of the adult counts as similar fact evidence on the young offender counts.

6Third, the appellant submits that the trial judge erred in admitting as similar fact evidence a videotaped statement of the appellant’s natural daughter “S.C.”, alleging more historic acts of sexual impropriety.

7We agree with these three submissions and conclude that this appeal must succeed in that new trials should be ordered.

Facts

8The essential facts may be briefly stated.

9The appellant and his ex-wife were married in the Yukon and each had children from previous marriages. They moved to Ontario in 2000 with the appellant’s ex-wife’s children, and separated in 2005. In 2012, the appellant’s step-daughter K.T., then in grade 12, made allegations that the appellant had sexually assaulted her when she was aged 5 to 11. The appellant’s younger sister, J.T., eventually made similar allegations. Twenty-eight charges were laid, 26 counts pertaining to K.T., and two counts pertaining to J.T.

10When news of these charges was published in the media, three women came forward to allege that the appellant had sexually abused them some 30 years earlier. At trial it was established that these allegations concerned the period when the appellant was between the age of 12 and 15, and the complainants were aged between 5 and 11 years old.

11As we will explain when discussing the similar fact evidence ground of appeal, there were similarities in the allegations made by the various complainants. All testified that the appellant had touched them inappropriately or that he had them touch him inappropriately.

Analysis

(1) Trial together of adult and young offender indictments.

12The appellant had asked for and expected two separate trials be held, with separate triers of fact on the two indictments. Counsel for the appellant agreed to run one trial after the other, but not to a single trial on both indictments. In a chambers discussion conducted on the first day of the scheduled trial, the trial judge indicated that both the adult and the young offender trials would run concurrently in front of him. There were two separate indictments, two arraignments, and the record for the two sets of counts was kept separate by the court reporters, but the trials proceeded together in all other respects. The trial judge rendered a single judgment, convicting the appellant on all but two counts. The trial judge noted in his reasons for the similar fact ruling that there was no severance application made by the appellant. However, this is explained by the fact that the proceedings were scheduled to be tried separately, and thus no severance application was required.

13In our view, the trial judge erred in law by conducting what in substance amounted to a single trial of the adult and young offender indictments.

14In R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, the Supreme Court of Canada held that the YCJA does not permit the joint trial of a young person and an adult. In our view, the principle upon which S.J.L. rests precludes the joint trial of a young offender indictment and an adult indictment involving the same accused.

15Writing for the majority in S.J.L., Deschamps J. held, at para. 72, that “it can be stated definitively that ‘[t]he youth justice system is separate from the adult system, with separate courts, judges and rules’ (L. Tustin and R. E. Lutes, A Guide to the Youth Criminal Justice Act (2005), at p. 29).” She added, at para. 74, that “Parliament intended to establish a youth criminal justice system that is hermetic, and completely separate from the system for adults, and thus to make it impossible to hold joint trials of adults and young persons.” The rationale for this separation was explained, at para. 75:

[T]he effect of the objectives of the [YCJA] is that the judge is asked to favour rehabilitation, reintegration and the principle of a fair and proportionate accountability that is consistent with the young person’s reduced level of maturity. As for the adult criminal justice system, it places greater emphasis on punishment. There is no doubt that how the judge conducts the trial will reflect these different objectives. It would be much more difficult to maintain an approach favourable to a young person if he or she were being tried together with an adult, and the presumption of diminished moral blameworthiness to which the young person is entitled could be undermined as a result. [Emphasis added.]

16While those statements were made in the context of a case involving the joint trial of distinct adult offenders and young offenders, in our view, they apply with equal force to a joint trial of one individual on adult and young offender indictments. Indeed, it seems to us that it would be even more difficult for a trial judge to maintain the favourable approach and presumption of diminished moral blameworthiness towards an accused as mandated by the YCJA if the accused were being simultaneously tried for adult offences. Although the appellant was an adult when the young offender charges were tried, he was entitled to be tried and judged on the legal standard that applied to him at the time he was alleged to have committed these offences. S.J.L. establishes that the maintenance of the YCJA standards requires separate and discrete consideration, hermetically isolated from the legal standards that apply to adults.

17We do not accept the respondent Crown’s submission that by maintaining two indictments and coopering together two separate transcripts of the proceedings, what occurred here did not amount to a single trial of the two sets of charges. In our view, these purely formal features of what occurred should not obscure the fact that, in substance, this amounted to one trial of the two sets of charges.

18The respondent argues that if there was an error in conducting a single trial of the adult and young offender charges, the convictions on the two remaining YCJA convictions can be saved under the Criminal Code’s proviso, s. 686(1)(b)(iv). As we have concluded that the convictions on both the youth and adult indictments must also be set aside on other grounds, we find it unnecessary to consider this argument. Nor is it necessary to consider the appellant’s submission that the error infected the adult convictions.

(2) Similar fact evidence

19The appellant conceded that the evidence on both indictments was admissible across counts on each indictment, but argued that evidence on the young offender counts should not be admitted as similar fact evidence on the adult counts and vice versa. The trial judge rejected that argument, and ruled that the evidence on all counts was admissible with respect to all other counts.

20In addition, the trial judge admitted as similar fact evidence the evidence of a complaint of sexual abuse made by the appellant’s daughter S.C. (considered below), and the evidence of “K.F.”, a friend of the appellant’s step-daughters, whose allegations the trial judge ultimately rejected.

21In his reasons for judgment, the trial judge explained his similar fact ruling. After reviewing the principles established by R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 SCR 339 and R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, he ruled as follows:

32The factors I consider significant arising from both indictments are as follows:

1. All of the female complainants except S.C. (teenager) were very young female children.

2. There was a close connection or relationship to the accused. The young girls were all neighbours, a cousin, daughter, or step-daughters. These female children were all well known to the accused and as such none of these allegations reflected a random encounter with a stranger or a chance encounter with a young female child.

3. Excepting L.C., all of these female children were in the presence of the accused because he was in a position of trust. He was the father, stepfather, babysitter, or person in authority (supervising adult with respect to K.F.).

4. Any of the alleged sexual contacts were said to have been occasioned in places where the accused frequented or was accustomed to, such as his home, cottage (camp), or the child’s home. Moreover, these sexual encounters occurred in familiar surroundings such as the complainant’s bedroom, the complainant’s bathroom, the complainant’s living room, the accused’s living room couch, sauna, cottage bedroom (bunkbed), accused’s hot tub, accused’s basement and the accused’s front vestibule.

5. The sexual contact did not include sexual intercourse but fondling and touching of the female child’s genitals including the insertion of a finger into their vaginas (two complainants, the allegation of his daughter S.C., and the witness K.F.), licking of their vaginas (two complainants), and in one instance with the witness, K.F., the assertion that he touched her all over her body.

6. In addition, the accused with four complainants had them perform oral sex and with the same four complainants had them masturbate him.

7. Two complainants were asked to observe him ejaculate (sauna and bathroom).

8. No complainants indicated that they had engaged in any kissing.

9. Two complainants in the Youth indictments indicated that they were warned that he would “tell our parents I was bad” and with respect to another complainant “don’t tell or you’ll be in trouble”.

10. The three complainants in the Youth indictments were childhood friends and two were childhood neighbours, while S.C. was a distant stepsister to the two complainants K.T. and J.T., and K.F. was J.T.’s best friend.

33In our [sic] assessment, these similar circumstances, details of allegations, and distinctive features, coupled with a paucity of any negative factors (see Handy) was the rationale for our decision to allow the cross-over in the allegations in the Youth indictment to prove the allegations in the Adult indictment and vice-versa and to allow the allegations of S.C. and her sworn written and videotaped statements and the Crown’s KGB application to reflect similar fact circumstances with respect to both the adult and youth offences.

22The trial judge noted, at para. 30, that defence counsel had submitted that evidence should not be admitted across indictments given the passage of 30 years between the allegations contained within the youth and adult charges and, more importantly, because the accused was a young person at the time of the alleged youth offences, an adult at the time of the adult offences. However, before listing the similarities we have set out above, the trial judge failed to offer any explanation as to why he was rejecting this defence submission, except for the following, at para. 31:

…I acknowledge that in considering the factors as reflected in the Handy decision, ‘proximity of time’ would not be present in the allegations in the Youth indictment and the time frame as alleged in the Adult indictment. Nevertheless, there are significant other factors that are present and compelling to allow for such a cross-over of similar acts.

23While we recognize that a trial judge’s ruling on similar fact evidence attracts considerable deference on appeal, it is our view that the trial judge erred by failing to come to grips with the significance of the considerable passage of time, and the difference in circumstances between the two sets of charges.

24More than 30 years had elapsed from the time of the young offender allegations. At the time of those allegations, the appellant was a young boy. In the case of 24 of the 26 charges he was not proven to be 14, and thus the law precludes the Crown from having those charges treated as adult offences. At the time of the adult allegations, the appellant was a mature adult approaching 50 years of age. In our respectful view, given the passage of time and the very significant difference in the age of the appellant, it was incumbent on the trial judge to offer a more cogent explanation for the admission of the similar fact evidence between the indictments in the circumstances of this case. We agree with the appellant that it would be dangerous to infer from the actions of the young boy the likelihood of guilt of a mature adult. Equally, we find it difficult to see what light the actions of a mature adult shed upon allegations made against that individual when he was a young boy.

25There were certainly similarities between the alleged acts of adult and young offender sexual impropriety. However, those similarities were not so striking or apparent to overcome the obvious problems posed by the passage of time, and the difficulty of attributing significance to the acts of an young offender when considering the guilt of an adult and vice versa.

26We conclude, accordingly, that the trial judge erred in his similar fact ruling. In his reasons for conviction on the adult counts, the trial judge explicitly referred to the similar fact evidence from the young offender counts as supporting the convictions. While he did not make a similar statement with reference to the youth convictions, it can be inferred from the significance he makes of the similar fact ruling in his reasons for judgment that the improper admission of the similar fact evidence had an impact on those counts as well. In our view, the error in admitting the similar fact evidence requires that all of the convictions must be set aside.

(3) Admission of the appellant’s daughter’s video-taped statement as similar fact evidence.

27The Crown called the appellant’s natural born daughter, S.C., as part of the similar fact application. S.C. was asked about allegations of sexual impropriety that she had made against the appellant in 1995. The appellant had been charged, but when S.C. recanted at the preliminary inquiry, those charges were stayed by the Crown. Prior to the trial of the present charges, S.C. was provided with the transcript of a statement she had made to the police in 1995. S.C. then testified that the allegations of sexual impropriety on the part of the appellant she had made in the 1995 statement were not true. The Crown cross-examined S.C. on her statement, but she remained firm in denying its truthfulness. During this cross-examination, S.C. testified that she had never seen the video of her statement, and that she would like to see it in order to better answer Crown counsel’s questions. S.C. resided in Yukon and she returned there at the conclusion of her evidence. Although the Crown had received a copy of the video statement prior to her departure, the videotape had not yet reached the location of the trial. Thus, S.C. was never given an opportunity to view it. Subsequently the Crown played the video for the Court, and the trial judge allowed the Crown’s KGB application to admit the video statement as evidence. In his judgment, the trial judge made findings as to S.C.’s demeanour in the video when accepting the truth of her 1995 allegations over her trial testimony.

28In our view, the trial judge erred in permitting the Crown to introduce S.C’s video statement in the circumstances outlined. S.C. disputed the truth of the statements she made in the video, and she should not have been deprived of the opportunity to view the video before it was admitted into evidence. More importantly, it was unfair for the trial judge to admit the video into evidence when the appellant was deprived of the opportunity to cross-examine S.C. on its contents. The appellant’s cross-examination of S.C. based on the transcript alone was insufficient, as the appellant was thus unable to question S.C. on her demeanour in giving the statement. The Supreme Court of Canada has stressed the significance of the opportunity to cross-examine a witness fully on an out-of-court statement as a factor bearing on reliability when that out-of-court statement is proffered as evidence: see R. v. Khelawon,2006 SCC 57,[2006] 2 S.C.R. 787.

Disposition

29In our view, the errors we have identified were significant and had the effect of depriving the appellant of a fair trial. Accordingly we allow the appeal, set aside the convictions, and direct a new trial.

30We thank counsel for their assistance in this matter and, in particular, commend Ms. Direnfeld for her candour in bringing to the court’s attention the problem with 24 of the 26 young offender counts.