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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. Wills, 2016 ONCA 965

DATE: 20161221

DOCKET: C60809

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Wills

Appellant

Michael W. Lacy, for the appellant

Molly C. Flanagan, for the respondent

Heard: December 7, 2016

On appeal from the conviction entered on March 16, 2015 by Justice J.D. Nadelle of the Ontario Court of Justice, sitting without a jury.

By the Court:

Background

[1] Following a judge alone trial, the appellant was convicted of various sexual offences contrary to ss. 151, 152 and 271 of the Criminal Code. The complainants were two young girls who attended a day care centre the appellant operated in his home. They were ages three and five at the time that they disclosed their allegations.

[2] Neither complainant testified at trial. The trial judge admitted the complainants’ unsworn statements to their parents and their subsequent unsworn videotaped statements to the police as evidence at trial under the principled approach to the hearsay rule, holding that the requirements of necessity and threshold reliability were met. The appellant testified and denied the allegations.

[3] In a ruling made in his reasons for judgment, the trial judge granted a Crown application to have the complainants’ evidence admitted as similar fact evidence. In doing so, he adopted the reasoning in R. v. Finelli, [2008] O.J. No. 2242 (S.C.), at paras. 27 to 29, to the effect that similar fact evidence could be admitted to show a specific propensity on the part of the appellant to abuse children under his care. The trial judge accepted the evidence of each complainant and concluded that the appellant’s evidence was unworthy of belief and did not raise a reasonable doubt.

Discussion

[4] In our view, this appeal must be allowed for two reasons.

(1) The trial judge erred in relying on improper and erroneous considerations in assessing the appellant’s evidence

[5] The first reason for allowing this appeal is that in assessing the appellant's evidence, the trial judge relied on improper and erroneous considerations.

[6] After referring to R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742, and noting that the appellant’s defence was a simple denial of the allegations, the trial judge pointed to the fact that defence counsel at trial raised an issue of possible animus on the part of the parents of one of the complainants. The trial judge then stated: "The fact that the [appellant] would use this as part of his defence when animus clearly did not exist makes his evidence sound unbelievable and does provide a reason to find it unworthy of belief."

[7] In his evidence, the appellant did not allege animus on the part of the parents. On the contrary, he testified that he had no problem with the complainants or their parents, and was not suggesting that the parents had a motive to lie, or that they harboured any animus toward him. It was the appellant’s trial counsel who raised the suggestion of possible animus on the part of the parents during a voir dire and in closing submissions.

[8] In oral argument before us, the Crown fairly acknowledged that it is not appropriate for a trial judge to consider this type of trial tactic by counsel when assessing the reliability and credibility of an accused person's testimony.

[9] However, the Crown maintained that when the trial judge's reasons are read as a whole, the trial judge was intending merely to reject the defence submission of animus or tainting on the part of the complainant's parents.

[10] We do not accept this submission. The trial judge dealt with the animus/tainting issue earlier in his reasons when assessing the credibility and reliability of the complainants’ evidence. In any event, this passage of the trial judge's reasons cannot bear the interpretation suggested by the Crown. Not only is the trial judge’s statement clear in impugning the appellant’s credibility based on his counsel’s trial tactics, it was contained in the portion of the reasons that addressed the appellant's evidence and followed a reference to R. v. W.D. The trial judge’s reliance on defence counsel’s trial tactics to find the appellant unworthy of belief is patently improper.

[11] The trial judge’s only other comment on the appellant's evidence at trial related to the appellant’s testimony concerning the operation of the day care. The appellant testified to the quality of his day care facility and produced colour-coded diagrams and photos to illustrate the set-up of the day care.

[12] In his reasons, the trial judge concluded that this evidence was irrelevant, and stated, "In my opinion, [the appellant] simply tried too hard to present himself as a top quality daycare provider when it was never an issue."

[13] In fact, given that the Crown had succeeded in its similar fact application to have the evidence of the two complainants apply across counts to demonstrate the appellant's specific propensity to abuse young children under his care, the evidence of how the appellant operated the day care centre was relevant. In any event, having regard to the nature of the allegations against him, it was hardly inappropriate for the appellant to attempt to demonstrate that he operated a proper day care facility. In all the circumstances, the trial judge’s adverse comment on the appellant’s credibility arising from this evidence was inappropriate and unfair.

[14] After finding that the Crown had proven the charges beyond a reasonable doubt the trial judge stated: “An alternate way of reaching the same conclusion would be by the reasoning of the Ontario Court of Appeal in R. v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749, at paragraph 53”. On appeal, relying on J.J.R.D., the Crown argues that the trial judge’s reasoned acceptance of the complainants' evidence justified his rejection of the appellant's evidence.

[15] We do not accept this argument. The “reasoned acceptance of a complainant’s evidence” that would justify the rejection of the evidence of an accused must occur in the context of a proper consideration of the whole of the evidence. For example, in R. v. D.(R.), 2016 ONCA 574, 30 C.R. (7th) 373, at paras. 19-20, Laskin J.A. noted:

In J.J.R.D. … [t]he accused's denial in that case, when "stacked beside" the complainant's evidence and her diary entries, "did not leave the trial judge with a reasonable doubt." And so Doherty J.A. explained that "an outright rejection of an accused's evidence" may be "based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence ..." (emphasis added). In doing so, he addressed the need for the trial judge to be convinced that the conflicting credible evidence established the accused's guilt beyond a reasonable doubt.

The burden of proof point: a trial judge who says only "I reject the accused's evidence because I accept the complainant's evidence" risks being held by an appellate court to have chosen which of the two parties to believe and failed to determine whether, on all the evidence, the accused's guilt had been proved beyond a reasonable doubt. [Emphasis added.]

[16] Here, as we have explained, the trial judge erred in relying on improper and erroneous considerations in assessing the appellant’s evidence. The trial judge's erroneous approach to such evidence precludes his alternative analysis premised on J.J.R.D.

(2) The trial judge erred in admitting evidence pursuant to the principled exception to the hearsay rule

[17] The second reason this appeal must be allowed is that the trial judge erred in finding that the necessity criterion for admission of evidence based on the principled exception to the hearsay rule had been met.

[18] The trial judge admitted the complainants’ hearsay statements about the alleged offences as evidence at trial based on a finding that they would be unlikely to provide a coherent and comprehensive account of the events due to a lack of present recollection, and because having to testify in court would cause them undue trauma.

[19] The trial judge made these determinations based on evidence from the complainants’ parents and a video recording of brief police interviews with each child shortly before trial and about a year after their initial disclosures.

[20] In our view, the trial judge erred in so doing. The trial judge's conclusion concerning undue trauma was based primarily on the parents' evidence of observations of changes in each complainant’s behaviour. In R. v. S.M.R. (2004), 2004 31916 (ON CA), 24 C.R. (6th) 185 (Ont. C.A.), at para. 45, Doherty J.A. stated that, unless the trial judge has had the opportunity to see the child’s reaction to questioning in the courtroom setting, “it will be a rare case … where the Crown can establish necessity based on the potential of psychological trauma without a proper assessment of the child by a qualified expert”. The trial judge in this case did not have the opportunity of seeing the children testify. Their parents’ evidence was simply not sufficient to displace the need for a proper assessment by a qualified expert.

[21] As for the conclusion that the children had no present recollection of the incidents, this was based primarily on the videotaped interviews with the children taken about a year after the allegations were made. The videotaped interviews were very brief and did not probe the complainants’ recollection or ability to speak about the incidents. In the circumstances of this case, in the absence of proper evidence of the risk of psychological trauma, the complainants’ ability to communicate the evidence, including their ability to recollect the events, ought to have been addressed in a voir dire: R. v. Parrott, 2001 SCC 3, [2001] S.C.R. 178, at paras. 56 and 57.

[22] The trial judge, thus, erred in finding the necessity criterion for admission of evidence based on the principled exception to the hearsay rule had been met.

[23] In the light of our conclusions on these two issues, it is unnecessary that we address the remaining grounds of appeal.

Disposition

[24] The appeal is allowed and a new trial is ordered, which is to be a judge and jury trial in accordance with s. 686(5) of the Criminal Code.

“Janet Simmons J.A.”

“K. van Rensburg J.A.”

“B.W. Miller J.A.”