WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(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…
(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…
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.
DATE: 20041005
DOCKET: C39023
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) - and – P.S. (Appellant)
BEFORE: ARMSTRONG, BLAIR and JURIANSZ JJ.A.
COUNSEL: Michael Lacy
For the appellant
Thomas D. Galligan
For the respondent
HEARD: August 13, 2004
On appeal from the convictions of Justice P. Hermiston of the Superior Court of Justice dated August 28, 2002.
E N D O R S E M E N T
[1] We are of the view that the appellant’s convictions for sexual assault and sexual touching of a person under the age of fourteen years are unreasonable and must be set aside.
[2] The complainant, who was eleven years old at the time of the events and fifteen years old at the time of trial, testified that she knew it was the appellant who came into the room during a sleepover and placed his penis in her hand though, at first, she thought it was a ten-year-old boy who was staying there that night.
[3] The trial judge’s brief reasons indicate the convictions were based on the complainant’s credibility and on the complainant’s description of the size of the assailant’s penis. We are of the view the trial judge erred in failing to consider the reliability of the complainant’s testimony. He concluded that her evidence was “too detailed to be fabricated, or the result of a dream”. There was no evidence as to how detailed a dream may be, and the trial judge seems not to have considered whether the detail of the complainant’s testimony was consistent with her earlier out-of-court statements regarding the event.
[4] At trial, the complainant testified the assailant lay beside her, but in an earlier statement she stated that her assailant was crouching behind her. We cannot agree with the Crown’s submission that this was a peripheral matter unimportant in assessing the reliability of her testimony.
[5] In her statements made the next morning and during the twenty-two months following the event, the complainant consistently suggested it was the boy who had sexually touched her. Her first articulation that it was the appellant was after she disclosed the incident to her mother twenty-two months later and her mother had suggested it could not possibly have been a ten-year-old boy based on the complainant’s estimate that the assailant’s penis was at least two to two and half inches in diameter. Until the conversation with her mother, the complainant had never shown anybody else how big she thought the penis was nor had she previously described the size of it.
[6] There was ample reason to doubt the reliability of the complainant’s estimate of physical dimensions. Her precise estimate that there was six and a half inches between the assailant’s head and the top of the door frame could not be true, whether the assailant was the appellant or the boy. Her account of the space occupied by the four girls sleeping on the floor is difficult to reconcile with the space necessary for the assailant to lie down beside her and the physical dimensions of the room and furniture.
[7] In the context of all the evidence in this case, we are of the view that the convictions are not safe and must be set aside as unreasonable.
[8] The appeal is allowed and there will be an order directing that the appellant be acquitted of the two charges.
“R.P. Armstrong J.A.”
“R.A. Blair J.A.”
“R.G. Juriansz J.A.”