Publication Ban Warning
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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;
(b) on application made by the victim, the prosecutor or any such witness, make the order; and
(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;
(b) on application of the victim or the prosecutor, make the order; and
(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.
(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.
(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall
(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;
(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and
(c) in any event, advise the prosecutor of their duty under subsection (3.2).
(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have
(a) informed the witnesses and the victim who are the subject of the order of its existence;
(b) determined whether they wish to be the subject of the order; and
(4) An order made under this section does not apply in either of the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.
(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.
486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,
(a) the person knowingly failed to comply with the order;
(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and
(c) a warning to the individual is not appropriate.
(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.
Court of Appeal for Ontario
DATE: 20240503 DOCKET: C70885
Trotter, Harvison Young and Copeland JJ.A.
BETWEEN
His Majesty the King Respondent
and
A.V. Appellant
Counsel: Colleen McKeown, for the appellant Michael S. Dunn, for the respondent
Heard: April 17, 2024
On appeal from the conviction entered on July 6, 2021 by Justice W. James Blacklock of the Ontario Court of Justice.
Reasons for Decision
[1] The appellant appeals from his conviction for sexual interference, contrary to s. 151 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, in relation to his daughter, who was 15 years old at the time of the offence.
[2] The appellant raises three grounds of appeal:
Does s. 7(4.1) of the Criminal Code violate s. 7 of the Canadian Charter of Rights and Freedoms because it is overbroad, and if so, can the infringement be justified under s. 1 of the Charter?
Did the trial judge err in failing to address the reliability concerns arising from the complainant’s evidence about “flashbacks”?
Did the trial judge err in relying on the truth of the complainant’s prior consistent statements to bolster her reliability?
[3] After hearing oral submissions on behalf of the appellant, we only called on the Crown to respond to the ground regarding the trial judge’s use of the complainant’s prior consistent statements.
[4] For the reasons that follow, we are not persuaded by any of the grounds of appeal.
Section 7(4.1) of the Criminal Code is not overbroad
[5] The appellant is a Canadian citizen, as is the complainant. The offence he was convicted of took place in Dubai in the United Arab Emirates. The appellant lived in Canada for a number of years, but went to Dubai to work in May 2016. His wife and children, including the complainant, remained in Canada. The offence occurred when the complainant and her siblings were visiting the appellant in Dubai, in the summer of 2016. It is not necessary to summarize the details of the allegations, other than that it was alleged that the appellant touched his daughter sexually, with his mouth and hands.
[6] To prosecute the offence in Canada, the Crown relied on the jurisdiction created by s. 7(4.1) of the Criminal Code. Section 7(4.1) provides that certain enumerated sexual offences against children committed abroad are deemed to be committed in Canada, if the person who commits the offence is a Canadian citizen or permanent resident within the meaning of s. 2(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Before the charge was laid against the appellant, consent of the provincial Attorney General was obtained, as required by s. 7(4.3) of the Criminal Code. No issue as to the court’s jurisdiction was initially raised by the appellant at trial.
[7] After the appellant was convicted, but prior to his sentencing hearing, he hired new counsel. His new counsel brought a motion to re-open the trial in order to challenge the constitutionality of s. 7(4.1) of the Criminal Code. The motion raised two grounds of unconstitutionality: (i) overbreadth, contrary to s. 7 of the Charter; and (ii) that the provision violated s. 11(d) of the Charter by depriving an accused of the right to make full answer and defence.
[8] The trial judge did not formally re-open the trial; however, he permitted the appellant to argue the s. 7 Charter overbreadth claim. The trial judge did not permit the appellant to argue the s. 11(d) Charter claim. Exercising his trial management function, he found that the s. 11(d) Charter claim had no merit, and for that reason should not be allowed to proceed. The appellant does not challenge on appeal the trial judge’s discretionary decision not to permit the s. 11(d) Charter claim to be argued.
[9] After hearing submissions, the trial judge rejected the argument that s. 7(4.1) was overbroad and violated s. 7 of the Charter. The trial judge’s reasons for rejecting the Charter challenge are reported at: R. v. A.V., 2022 ONCJ 328.
[10] As noted above, we did not call on the Crown to respond to the appellant’s Charter argument. We do not find it necessary to repeat the s. 7 Charter analysis carried out by the trial judge as we are substantially in agreement with his thoughtful and comprehensive analysis. In addition, we note that this court has recently addressed the proper analytical approach to s. 7 Charter claims of overbreadth in R. v. Brar, 2024 ONCA 254, at paras. 53-55, 61 and 81. The trial judge’s analysis followed the analytical structure mandated by Brar and by the leading Supreme Court of Canada authorities on overbreadth, such as Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 93-97 and 112-119, and R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at paras. 26-27, 31 and 33.
[11] The trial judge carefully reviewed the text, context, and statements of the legislative purpose of s. 7(4.1) in assessing its object, including a detailed review of the legislative history.
[12] In substance, the overbreadth claim fails because the object or purpose of the legislation is broader than that asserted by the appellant. The trial judge found that the purpose of s. 7(4.1) of the Criminal Code is: “the deterrence of Canadian citizens and permanent residents from engaging in what, by Canadian standards, is seen as exploitive sexual activity of children while abroad.” He further found that this objective “is not confined to short term travelers but relates to all Canadians however they come to be outside Canada.”
[13] In light of this finding of the purpose of s. 7(4.1), the trial judge was not satisfied that the reasonable hypotheticals proffered by the appellant for purposes of the s. 7 Charter analysis had “no connection” to the objective of Parliament in enacting s. 7(4.1) of the Criminal Code. Thus, s. 7(4.1) is not overbroad within the meaning of s. 7 of the Charter. We agree with this conclusion.
[14] When the scope or effect of s. 7(4.1) of the Criminal Code is assessed against the broader purpose found by the trial judge, it does not deprive individuals of life, liberty, or security of the person in cases that have no connection to the purpose of the legislation. In other words, the means employed in s. 7(4.1) are not overly broad when assessed against its purpose.
[15] We address one aspect of the trial judge’s reasons, only for clarity. At para. 53 of his reasons, the trial judge noted that the issue of how prosecutorial discretion might be exercised in a concrete case was a separate question from the constitutionality of s. 7(4.1). We do not understand this portion of the trial judge’s reasons to hold that the existence of prosecutorial discretion could cure what would otherwise be unconstitutional overbreadth, a proposition which would run contrary to Supreme Court precedent: Appulonappa, at para. 74.
[16] Rather, the reasons as a whole, and in particular para. 52, make clear that the trial judge found that the reasonable hypotheticals proffered by the appellant for purposes of analysis were within the scope of the object of s. 7(4.1) of the Criminal Code and, thus, the provision was not overbroad. Having reached that conclusion, the trial judge was simply observing that the Crown always retains discretion whether to proceed with a prosecution, even where the acts alleged fall within the scope and purpose of the legislation creating an offence, or, as in this case, allowing its prosecution in Canada.
[17] In light of our finding that s. 7(4.1) of the Criminal Code does not violate s. 7 of the Charter on grounds of overbreadth, it is not necessary to consider the appellant’s submissions under s. 1 of the Charter.
The trial judge did not err in failing to address the complainant’s evidence of “flashbacks”
[18] The appellant argues that the trial judge erred by failing to specifically address in his reasons the complainant’s evidence that she had “flashbacks” of the sexual touching. This argument is made in the context that the defence position at trial focused primarily on the reliability of the complainant’s memory. The defence argued at trial that the trial judge should have a reasonable doubt about the reliability of the complainant’s evidence on the basis that her memory was influenced by family conflict such that a bad dream she had in Dubai became her reality.
[19] We are not persuaded by this argument.
[20] The complainant provided a videotaped statement to police in May 2019. At trial, she adopted the statement, and it was tendered as part of her examination-in-chief pursuant to s. 715.1 of the Criminal Code. In the statement, the complainant said that she returned to Dubai in early 2019 to visit the appellant (i.e., approximately two-and-a-half years after the alleged sexual touching). She then said, “during that trip that’s when all the flashbacks started coming, and I started remembering.” The officer conducting the interview did not ask any follow-up questions to the complainant about the reference to “flashbacks”, nor did Crown counsel ask any questions in examination-in-chief.
[21] In the police statement, the complainant also described what happened immediately after the sexual touching, and the fact that she had trouble sleeping afterward. She described trying to tell her brother about it the next day, but her father was always nearby. She explains that she was in another country and did not know what to do. They were leaving in a day or two, so she tried to forget about it. She also said that she did not tell her mother about the sexual touching when she got back to Canada because she felt like it was her fault.
[22] In cross-examination, the defence questioned the complainant about the reference to “flashbacks” in her police statement. The complainant maintained that she always had a memory of the sexual touching by the appellant. She explained that she remembered the sexual touching more vividly when she was back in Dubai in the building where the sexual touching happened.
[23] The trial judge was not required to expressly address “flashback” evidence in his reasons. Read fairly and in context, the complainant’s statement to police and her trial evidence did not suggest she had forgotten about the sexual touching and later recovered a memory of it. Rather, having been unable to tell her brother and afraid to tell her mother, the complainant decided not to report the sexual touching and tried not to think about it.
[24] The reasons for judgment show that the trial judge was alive to the fact that the defence focused primarily on the reliability of the complainant’s evidence. He specifically addressed the reliability of the complainant’s evidence. In particular, the trial judge addressed what he referred to as the defence’s “dream theory”, and rejected it. He found that the complainant’s actions in the time between the alleged sexual touching and when she went to police were consistent with a young girl who had been assaulted and was “not prepared to report to others or confront the perpetrator, given his role in her life”. The trial judge considered the defence challenge to the reliability of the complainant’s evidence and explained why he rejected it. He was not required to do more.
The trial judge did not err in his use of the complainant’s prior consistent statements
[25] The appellant argues that the trial judge erred by relying on the truth of the complainant’s prior consistent statements to bolster her reliability.
[26] We do not accept this ground of appeal. In particular, we are not persuaded that the trial judge relied on the complainant’s prior consistent statements for the truth of their contents.
[27] Both the complainant and the appellant testified about the complainant’s prior consistent statements. The complainant testified, in her police statement and in cross-examination, that during her trip to Dubai to visit her father in early 2019, she said words to the appellant to the effect of, “I remember what you did” or “I know what you did.” In cross-examination, it was suggested to her that during an argument with her father in May 2019, she again said, “I know what you did.” The complainant initially responded that she did not say this on that occasion, because she had learned not to bring it up. After further questioning, she said she did not think she said this in the May 2019 argument, but she may have, and agreed she was not certain whether she said it on that occasion.
[28] The appellant testified, in both examination-in-chief and cross-examination, that there were two instances during arguments when the complainant said to him words to the effect of, “I know what you did”. The first was during the complainant’s trip to Dubai in early 2019. The second was in May 2019, when he was living back in Canada.
[29] The appellant concedes that the prior consistent statements were properly admissible in this case. He concedes that the trial judge properly used them both as narrative and to rebut an allegation of recent fabrication.
[30] In our view, in the passages of the reasons the appellant impugns, the trial judge did not use the complainant’s prior consistent statements for the truth of their contents to bolster the complainant’s reliability. Rather, he used them for two reasons (in addition to narrative and to rebut recent fabrication discussed above).
[31] First, he used the fact that the appellant also testified that the complainant made statements to the effect of “I remember what you did” in early 2019 in Dubai, and again in May 2019 in the family’s home in Canada, as some confirmation (“support”) for the complainant’s narrative of events.
[32] Second, he used the fact that the statements were made and the circumstances in which they were made as narrative as circumstantial evidence. He found that the nature and circumstances of the statements were consistent with the incremental disclosure of a complainant reluctant to report the abuse “or confront the perpetrator, given his role in her life.” This use did not rely on the truth of the prior consistent statements.
[33] Neither of these uses is impermissible.
[34] We would add one note of caution, which this court has sounded before. Neither the trial judge nor the parties addressed the admissibility of the complainant’s prior consistent statements when they were admitted or the purpose for which they were admissible. This likely happened because the prior consistent statements formed part of the complainant’s police statement admitted pursuant to s. 715.1 of the Criminal Code and because it was evident that, at a minimum, they were admissible as narrative within the Crown’s case.
[35] This court has emphasized that because prior consistent statements are presumptively inadmissible and the exceptions to the rule against them are sometimes difficult to apply, trial judges and parties should address the basis for admissibility at the time a statement is tendered: R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 45.
[36] While we are not persuaded that the trial judge erred in the use he made of the prior consistent statements in this case, addressing the permissible use at the time prior consistent statements are tendered minimizes the risk of improper admission or improper use of such statements.
Disposition
[37] The appeal is dismissed.
“Gary Trotter J.A.”
“A. Harvison Young J.A.”
“J. Copeland J.A.”