COURT OF APPEAL FOR ONTARIO
DATE: 20000209
DOCKET: C30935
RE: HER MAJESTY THE QUEEN (Respondent) v. J.R.Q.
(Appellant)
BEFORE: DOHERTY, FELDMAN and O’CONNOR JJ.A.
COUNSEL:
Howard C. Rubel
for the appellant
Christine Tier
for the respondent
HEARD: January 26, 2000
On appeal from the conviction of Mr. Justice A. Stong on July 8,
1998 and the sentence imposed on November 16, 1998.
E N D O R S E M E N T
[1] The complainant alleged that the appellant, her stepfather,
sexually assaulted her on many occasions between 1977 and 1982
when the complainant was between 9 and 15 years of age. The
complainant testified that she first revealed these assaults to
her mother in 1990 and made a second disclosure in 1996. The
charges were laid shortly after the second disclosure.
[2] The complainant’s mother confirmed that the disclosures were
made, but testified that the first disclosure occurred in 1992 or
- The complainant's mother also testified that she
confronted the appellant concerning the complainant’s accusations
on both occasions. Her description of the appellant’s reactions
when she confronted him could reasonably be taken as an admission
by the appellant that he had abused the complainant. The trial
judge accepted the mother’s evidence.
[3] The appellant did not testify.
[4] The trial judge gave detailed reasons in which he reviewed
the evidence at length. He considered carefully the various
challenges made to the complainant’s veracity. The trial judge
had some serious concerns about the complainant’s credibility.
After referring to an apparent inconsistency between her evidence
at trial and her evidence at the preliminary inquiry, the trial
judge said:
But the matter does not end there although that [the
inconsistency] impacts negatively somewhat on Ms.
Robinson’s evidence, I have other evidence to consider
with respect to her allegations and I am relying on
the evidence of V.A. [the complainant’s mother] in
great detail to assist me in arriving at my decision.
[5] Counsel for the appellant has advanced two grounds of
appeal:
• The trial judge relied on the evidence of the disclosures
• made by the complainant to her mother to corroborate the truth of
• the allegations made by the complainant.
• The trial judge erroneously used the “childhood memory”
• standard to explain away inconsistencies in the evidence of the
• complainant which involved events that occurred when the
• complainant was an adult.
[6] With respect to the first ground of appeal, it is agreed
that the complainant’s evidence of the two disclosures made to
her mother was admissible as part of the narrative.
[7] On cross-examination, the complainant denied the appellant’s
suggestion that in 1996 she threatened the appellant with
disclosure of her allegations unless he transferred his interest
in the matrimonial home to the complainant’s mother. Counsel for
the appellant says that this was not an allegation of recent
fabrication, but rather an allegation that the complainant would
make public the false allegations which she had made privately to
the appellant some years earlier.
[8] We cannot agree with this characterization of the cross-
examination. The suggestion put to the complainant was not as
narrow as counsel contends. It was the position of the defence
that the complainant was prepared to advance a false allegation
in 1996 as a way of forcing the appellant to give up his home.
In our view, it was open to the trial judge to use the evidence
of the earlier disclosure, made prior to any dispute over the
house, to rebut the suggestion that the 1996 disclosure was a
pressure tactic used by the complainant.
[9] In any event, it does not appear that the trial judge used
the evidence to rebut an allegation of fabrication. Rather, he
used the evidence of the fact of the disclosures and not the
evidence of the contents of the disclosures as part of the
narrative. In this case, the narrative involved the events which
began with the disclosures and culminated in the appellant’s
admissions to the complainant’s mother. The fact that the
disclosures were made to the complainant’s mother was admissible
as part of that chain of events described by the mother and
which, if accepted, offered strong support for the truth of the
complainant’s allegations. We do not think that the trial judge
misused the evidence concerning the disclosures to the
complainant’s mother.
[10] With respect to the second ground of appeal, the trial judge
used the childhood memory standard appropriately in addressing
the complainant’s evidence concerning details surrounding the
actual assaults. It would appear, however, that the trial judge
used the standard improperly in connection with evidence of the
complainant’s disclosures to her mother. Those disclosures were
made when the complainant was an adult and any discrepancies
between her recollection of the circumstances surrounding the
disclosures and that of her mother could not be explained by her
age when the alleged assaults occurred. In our view, however, to
the extent that the trial judge misused that standard, no
prejudice resulted. The inconsistencies were peripheral and the
trial judge so characterized them. The misapplication of the
childhood memory standard to excuse these inconsistencies could
not have prejudiced the appellant or affected the verdict.
[11] The conviction appeal is dismissed.
[12] At the request of the Crown, with the support of the
complainant and without objection by the appellant, the non-
publication order made at trial is terminated.