W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144, 145, 149, 156, 245 or 246 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 section 146, 151, 153, 155, 157, 166 or 167 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), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20040202

DOCKET: C35357

COURT OF APPEAL FOR ONTARIO

FELDMAN and SIMMONS JJ.A. and LANGDON J. AD HOC

B E T W E E N:

HER MAJESTY THE QUEEN

David M. Paciocco for the appellant

Respondent

• and -

T. C.

Roger Shallow for the respondent

Appellant

Heard: June 3, 2003

On appeal from the judgment of Justice Emile R. Millette of the Superior Court of Justice dated August 31, 2000.

SIMMONS J.A.:

[1] On August 31, 2000, Millette J. found the appellant guilty of sexual touching and sexual assault. Applying the principle in R. v. Kienapple[^1], the trial judge convicted the appellant of sexual touching and conditionally stayed the appellant's conviction for sexual assault. The appellant appeals against his conviction.

[2] The charges against the appellant arose out of an incident that occurred in August 1996. The appellant is married to the complainant's mother. At the time of the incident, the then 12-year-old complainant was living with the appellant and her mother.

[3] The appellant's main ground of appeal relates to the fact that, at trial, the Crown led evidence of other allegations of sexual impropriety made by the complainant against the appellant, as well as evidence of prior consistent statements made by the complainant, without obtaining a ruling concerning the admissibility of such evidence. The appellant asserts that the trial judge committed reversible error by admitting the impugned evidence, by referring to some of it in his summary of the evidence, and by failing to explain whether and how he used it.

[4] However, the appellant's position at trial was that the complainant fabricated her allegations so that she could move to her father's home. Defence counsel at trial (not Mr. Paciocco) not only did not object to the impugned evidence, he adduced certain aspects of it and relied on the complainant's prior allegations and statements as part of an all out attack on the complainant's credibility, claiming that it demonstrated a motive to fabricate as well as a history of embellishment.

[5] In these circumstances, it is not open to the appellant to object to the admissibility of the impugned evidence for the first time on appeal[^2]. While it would have been preferable had counsel or the trial judge specifically adverted to the purposes for which the evidence was being admitted at the time it was adduced, there is no suggestion in the trial judge's reasons that he used any of the impugned evidence for an improper purpose, and I see no basis for holding that the defence was in any way prejudiced. The evidence of other prior statements not relied on by the defence was admissible to put the statements relied on by the defence into proper context. I would not therefore give effect to the appellant's main ground of appeal.

[6] As a further ground of appeal, the appellant claims that the trial judge misapprehended the evidence adduced at trial and that he arrived at an unreasonable verdict.

[7] I find no merit in the submission that the verdict was unreasonable. However, for the reasons that follow, I have concluded that the trial judge failed to advert to certain evidence that was important to the defence and that several of the reasons that he advanced for rejecting the complainant's evidence did not support his conclusion. I would therefore allow the appeal, quash the conviction and order a new trial.

I. Background

i. The complainant's evidence concerning the incident forming the subject matter of the charges

[8] The complainant was born on May 6, 1984. Her parents separated when she was very young, and her mother subsequently married the appellant. The complainant's mother and the appellant had one child together; the complainant's half-brother, S., and the family of four lived together in Horton Township.

[9] At trial, the complainant described the incident forming the subject matter of the charges as follows. In August 1996, the complainant, the appellant and S. were at the family trailer located at a local campground. The complainant's mother had not accompanied them to the trailer that evening. The complainant testified that she went to sleep at about 11 p.m. on the top bunk of a set of bunk beds and later awoke to find the appellant's hand in her underwear, touching her vagina. The appellant left when she rolled away, but returned a few minutes later and asked if she had been awake a minute ago. The complainant answered, "no" and the appellant walked away. However, he returned again a short time later and put his hand under her blanket. The complainant testified that the appellant must have thought that she was asleep. She asked him what he was doing and he responded that he was looking out the window. The appellant then left the room and lay on the couch. From there, he asked whether she knew what masturbation was. When she answered "no", he offered to show her. The complainant said "no", and the incident ended.

ii. Evidence of other allegations of sexual improprieties

[10] In her evidence in-chief, the complainant described a subsequent incident that happened at the trailer. She said that, on that occasion, she was sleeping on the bottom bunk and S. was on the top bunk. She said that the appellant came into the room with no clothes on and stood in front of the bunk bed with his hands on the top bunk. She said:

I thought he was doing something to my brother … he kept on looking down at me and sticking his penis closer and closer to my face so finally I rolled over so I was facing the wall. Then he went to the bathroom and I got up and ran to my mom and I told my mom …

[11] In cross-examination, the complainant agreed that she told her mother that the appellant had been "waving his dick around for twenty minutes ".

[12] In addition, the complainant said in-chief that the appellant would sit with his robe wide open, let his penis hang out and that he would masturbate in front of her. She described one particular occasion when her friend, K.G. was present with her when that occurred.

iii. Evidence of prior complaints

[13] At the outset of the appellant's trial, Crown counsel informed the court that, before calling the complainant, he proposed to call the investigating police officer and two other witnesses. In addition, Crown counsel indicated that the complainant would describe a total of three incidents, two that occurred at the trailer, and one that occurred at the family home. Crown counsel then said:

There may be a legal issue as to hearsay evidence and recent complaint and the Crown has a witness who would be giving some evidence about that hearsay aspect, a young female companion of [the complainant]. I prefer … to call that witness before I call the complainant and I thought I should advise the Court of that first and clarify that position with my friend before your honour. I haven't discussed it in any detail with my friend.

[14] Defence counsel made no comment in response to the Crown's remarks.

[15] As its first witness, the Crown called the investigating officer, who testified that she was first contacted in relation to this matter by the Children's Aid Society in November 1998. The officer said that as the result of that contact she was put in touch with the complainant's father. She said that she took a statement from the complainant and obtained an excerpt of the complainant's diary. She then interviewed three of the appellant's friends as well as a woman who was living with the complainant's father at the time the complaint was made.

[16] In cross-examination, defence counsel elicited evidence concerning the content of the officer's interview of the complainant's friend, K.G. and also questioned the officer about whether she had difficulty believing the complainant as a result of the interview. In particular, the officer asked K.G. whether anything unusual had happened on any occasion when she was visiting the complainant and watching T.V. K.G. said no, but added that on one occasion the complainant told her after they left the appellant's company that the appellant had his hands down his pants while they were watching T.V. When asked by the officer whether she would have noticed it if the incident had taken place, K.G. responded, "[p]robably no because I don't think he would have done it if I was there".

[17] The complainant's father was the second witness to testify. He said that the complainant began living with him in about November of 1997. He called the Children's Aid Society about the matters in issue after a woman he was living with discovered the complainant's diary and showed it to him. He confirmed, in cross-examination, that the complainant had been asking him if she could live with him for some time prior to November of 1997.

[18] K.G. was the third witness to testify. In her evidence in-chief, she confirmed that on one occasion when she was visiting the complainant, the complainant told her that the appellant had been "playing with himself " earlier while the three of them were watching T.V. K.G. testified in-chief that she did not see that. In cross-examination she agreed that she could see the appellant in plain sight from where she was seated.

[19] The complainant was the next witness to testify. In addition to the matters already referred to, she testified in-chief that on the day following the first incident she wrote a note to her mother describing what happened as she did not want to tell her mother directly. Further, she said that prior to describing the various incidents to the Children's Aid Society worker, she said had spoken about the incidents to a boyfriend, J.E., and written about them in her diary. In particular, she said that when writing in her diary, she addressed her comments to a deceased grandmother she had never met.

[20] In cross-examination, the complainant maintained that she and her mother got along "pretty good ". However, she agreed that she sometimes fought with her mother because she did not like having to look after S., that she had been asking her father to take her in for "a good year " prior to November 1997, and that he kept promising that he would take her, but never did. She agreed that after she went to live with her father, she told people that her mother had kicked her out. In addition, she agreed that she wrote a letter to J.E., in the fall of 1998, which included the following statements that she said were true:

I told you that I was abused and do you want to know how I was abused? Well, my mom hit me all the time and slapped me across the face and pulled my hair and shit like that and she used to say I was a useless piece of shit and she used to call me every name in the book and last, I was molested by my step-dad.

[21] Following the complainant's testimony, the Crown called three additional witnesses, all of whom testified about prior complaints made by the appellant. The complainant's former boyfriend, J.E., testified that, before being interviewed by the police in November 1998, he had known the complainant for about three months. He confirmed that he received the letter referred to in the complainant's cross-examination sometime after meeting her. A former girlfriend of the complainant testified that, approximately four years previously, she read a journal entry written by the complainant indicating that the complainant's stepfather had molested her at the campground. Finally, the woman who discovered the complainant's diary explained that she was sorting through some material that the complainant was discarding and became curious when she saw the word "sexual assault ". She read the diary entry and then showed it to the complainant's father. In cross-examination, she confirmed that the diary entry that she saw was dated September 1, 1997.

iv) The defence

[22] Three witnesses testified for the defence: the appellant's sister, his wife (the complainant's mother) and the appellant. The appellant's sister confirmed that she was aware of the poor relationship between the complainant and the complainant's mother when the complainant was about 13 or 14. She said that, after being told about the complainant's first allegation, in order to prevent further allegations, she suggested that the appellant not be alone with the complainant.

[23] The complainant's mother described the complainant as demanding and self-centred. She said that she and the complainant fought over the complainant's treatment of her brother, her unwillingness to do chores, and about curfews at the campground. She testified that at the age of 11 the complainant began expressing a desire to live with her father.

[24] The complainant's mother also testified about the incident forming the subject matter of the charges and how it came to her attention. She said that she had a commitment in town on the evening in question. The complainant wanted to stay home alone but was forced to go to the trailer. The next day, when the family returned home, the complainant went about her usual activities until about three o'clock in the afternoon when she approached her mother and said, "mom, I have something to tell you … dad felt me up last night ". She testified that the complainant did not write her a note; she simply approached her and told her.

[25] The complainant's mother said she telephoned the appellant and asked him to come home immediately. He denied the incident and she accepted his version of the events. In order to protect him from further allegations, the appellant was never left alone in the house with the complainant and the complainant was not allowed back at the campground.

[26] As for the second incident, the complainant's mother explained that she permitted the complainant to go to the trailer because she (the mother) was planning to be there. The complainant did not return to the trailer on time for her curfew so her mother found her and summoned her home and also told her that she had to baby-sit S. The complainant made the second allegation soon after her parents returned to the trailer. The appellant went to kiss his son goodnight and then went into the bathroom. He had been gone for three to four minutes when the complainant yelled, "dad was dangling his dick in my face for twenty minutes ".

[27] The complainant's mother said that after the second allegation the complainant spent a lot of time with her father and that arrangements were made eventually for her to move in with him. The complainant continued to visit her mother's home regularly for a time, but the visits stopped after the police were called.

[28] The appellant testified and denied the allegations relating to both incidents at the trailer. In addition, he was cross-examined about allegations that he would expose himself to the complainant and masturbate in front of her. He described those allegations as "totally false ".

[29] In closing submissions, defence counsel asserted that the complainant fabricated the allegations as part of a pattern of alleging gross misconduct by her parents at a time when the complainant was seeking more freedom and being put off in her attempts to move in with her father. He relied on her motive to fabricate and pattern of embellishment as giving rise to a reasonable doubt.

II. The trial judge's reasons

[30] In his reasons for judgment, the trial judge rejected the appellant's testimony and gave several reasons for accepting the complainant's evidence. His reasons for accepting the complainant's testimony are as follows:

Her mother … also testified to the effect that she maintained that [the complainant] was very difficult to handle. That she wanted more freedom and would do anything to achieve it. The defence has attempted to portray [the complainant] as a greatly troubled teenager, of a young person out of control. Of a young lady only interested in partying with her peers and in particular with young boys. The defence suggests that [the complainant] had ulterior motives in making these accusations, namely, of making it impossible for her to continue residing at the … residence.

I find that such a proposition is not borne out by the evidence. Indeed, if such had been her motive, she would not have visited her mother on frequent weekends. According to her mother's own testimony, she would come home almost every weekend. That, her room was kept for her. Certainly not actions or behaviour consistent with someone who wished to sever the family bonds or family ties.

Further, if she had such alternative motives, her allegation of the second incident could have been embellished. It could have included touching as opposed to merely exposing.

[The complainant's father's] testimony was to the effect that [the complainant] never complained to him about how her mother treated her nor did she make any adverse comments about the accused. On the other hand, [the complainant's mother] and the accused attempted to cast the blame on [the complainant] for her father's distress and emotional problems. They attempted to place the entire blame on the complainant for the difficulties in the household as well as her natural father's distress. The accused even suggested that the complainant demonstrated this kind of rebellious behaviour at the age of one and a half.

The arrangement namely, making sure that the accused was no longer to be alone with the complainant adds credence to the complainant's version of events. Why such a precaution if nothing had happened? This after all, was a first allegation.

I found the testimony of the complainant to be forthright and credible. She demonstrated good recollection of matters of importance. Her description of what transpired that evening never changed. She was cross-examined by able, skilled and competent counsel. She remained firm as to what had transpired. Her description of the assault was that the accused touched her vagina with his hand. She did not present as someone who had rehearsed her testimony. I find her evidence to be manifestly reliable.

[The complainant's mother], of course, was not present. She is unable to corroborate what happened one way or the other. But, she has attempted by her testimony to discredit and attack her daughter's character. The aunt, that is the accused's sister, also attempted to describe the complainant as having ulterior motives and as being uncontrollable.

[The complainant] was 12 years old at the time of this incident, in August of 1996. The evidence is that the complainant is doing well in school. That her behaviour at school was normal and that even now she is on the honour roll. She was allowed to spend, according to her mother, just about every weekend at the [family] residence after she moved with her father in Renfrew. Such evidence is totally inconsistent with the suggestion that the complainant had ulterior motives and was out of control. Also, inconsistent with the suggestion that the complainant had to leave to protect the accused from further false accusations. [emphasis added]

III. Analysis

[31] While it was open to the trial judge to accept the complainant's evidence, in doing so he failed to advert to important evidence relied on by the defence and also advanced several reasons for accepting the complainant's evidence that do not support his conclusion. In my view, the cumulative effect of these two elements of his reasons gives rise to reversible error.

[32] First, the trial judge did not allude to the defence position that the complainant's prior statements reflected a history of embellishment. Three aspects of the evidence were capable of supporting this assertion: i) K.G.'s evidence that she saw nothing on an occasion when the complainant claimed that the appellant was "playing with himself " in the presence of both girls; ii) the evidence of the allegations of mistreatment made by the complainant against both parents in her letter to J.E. as contrasted to her trial evidence that she got along "pretty good " with her mother; and iii) the complainant's statement to her mother that the appellant waved his penis in her face for twenty minutes, when her mother testified that the appellant had only been in the room for a few minutes.

[33] While it was open to the trial judge to reject the assertion that the complainant had embellished the first two complaints and to discount the significance of the temporal embellishment in the third complaint, the defence assertion that the complainant's prior statements reflected a history of embellishment was an important element of the defence position. By failing to address that issue, the trial judge disregarded important evidence and failed to respond to one of the primary submissions of the defence.

[34] Second, in three instances, the trial judge advanced reasons for rejecting the complainant's evidence that do not justify his conclusion and on one occasion overstated the defence position in order to reject it. At page 10 of his reasons the trial judge said:

Further, if she had such alternative motives, her allegation of the second incident could have been embellished. It could have included touching as opposed to merely exposing.

While the trial judge's statement that the complainant could have made a more serious allegation if she had a motive to fabricate is undoubtedly correct, it fails to address the fundamental question of whether the allegation as made amounted to a fabrication.

[35] In addition, at page 11 of his reasons, the trial judge said:

The arrangement namely, making sure that the accused was no longer to be alone with the complainant ads credence to the complainant's version of events. Why such a precaution if nothing had happened? This after all was a first allegation.

In my view, the arrangement can add credence to the complainant's allegations only if the trial judge had already concluded that the allegations were true. If one begins with the premise that the allegations could be either true or false, the fact of the arrangement, standing alone, does not assist in assessing their credibility.

[36] At page 12 of his reasons, the trial judge said:

[The complainant] was 12 years old at the time of this incident, in August of 1996. The evidence is that the complainant is doing well in school. That her behaviour at school was normal and that even now she is on the honour roll. She was allowed to spend, according to her mother, just about every weekend at the [family] residence after she moved with her father in Renfrew. Such evidence is totally inconsistent with the suggestion that the complainant had ulterior motives and was out of control. [emphasis added]

[37] Although there was clear evidence that the complainant was doing well in school at the time of trial, there was no similar clarity concerning how she was doing at the time of the incident forming the subject matter of the charges. When asked to describe the complainant's academic abilities, her mother responded, "[s]he has always been a good student even from grade one up to grade six ". However, the complainant testified that, when the allegations were reported to the Children's Aid Society, her marks were "really bad" and that she was failing some classes. Considering the evidence as a whole, there was no clear evidence of how the complainant was doing in school in August 1996. Therefore it was not open to the trial judge to rely on her academic performance as a basis for rejecting the position of the defence.

[38] Finally, in finding that the complainant's continued visits to her mother's residence were not "actions or behaviour consistent with someone who wished to sever the family bonds or family ties ", the trial judge overstated the defence position as a means of rejecting it. The defence position was not that the complainant wanted to sever all ties with her mother, but rather, simply that she wanted to move in with her father. While it was certainly open to the trial judge to consider the complainant's continued visits to her mother's home in evaluating the defence position, the trial judge's characterization amounted to an overstatement. Moreover, there was other evidence that may have affected the assessment of the complainant's motive for continuing the visits, had the trial judge stated the defence position correctly.

[39] In my view, none of these factors would be sufficient, on their own, to justify ordering a new trial. However, considered as a whole, they undermine the trial judge's

reasons for accepting the complainant's evidence to a sufficient extent to warrant ordering a new trial.

IV. Disposition

[40] Based on the foregoing reasons, the appeal is allowed, the conviction is quashed and a new trial is ordered.

Released: February 2, 2004 "KNF"

"Janet Simmons J.A."

"I agree K. Feldman J.A."

"I agree Langdon J."

[^1]: 1974 14 (SCC), [1975] 1 S.C.R. 729. [^2]: See R. v. Batte (2002), 2000 5751 (ON CA), 34 C.R. (5th) 197 and R. v. Demetrius, 2003 16618 (ON CA), [2003] O.J. No. 3728.