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:

An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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) offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) 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 subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) 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) to (iii).

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

(b) on application made by the complainant, the prosecutor or any such witness, 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.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

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.

DATE: 20060410

DOCKET: C43018

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – THOMAS HACKETT (Appellant)

BEFORE: GILLESE, BLAIR and LAFORME JJ.A.

COUNSEL:

Paul Calarco for the appellant

John Pearson and Karen Shea for the respondent

HEARD: April 4, 2006

On appeal from the convictions entered on September 17, 2004 and the sentence imposed on February 3, 2005 by Justice Helen K. MacLeod of the Superior Court of Justice, sitting without a jury.

E N D O R S E M E N T

[1] The primary issue in this appeal relates to the trial judge’s treatment of expert opinion evidence tendered by the defence.

[2] There was no dispute at trial that the complainants, A.R. and T.K., believe the appellant sexually abused them when they were children. The defence position was that the complainants’ evidence was the result of “acquired or false memories” created during counselling sessions.

[3] In support of this position, the defence called Dr. Carr, a psychiatrist with particular expertise in memory. On the basis of Dr. Carr’s voir dire testimony, the trial judge concluded that false memory syndrome is not a particular area of psychiatric expertise but is “part and parcel” of psychiatry. She ruled that Dr. Carr was qualified as an expert psychiatrist and physician.

[4] Following the ruling, the defence called Dr. Carr who was permitted to testify on how acquired or false memories are created. Dr. Carr opined that there was a high probability the evidence of the complainants, as contained in the transcript of their preliminary inquiry testimony and videotapes to the police, reflected acquired or false memories. Dr. Carr was not present when the complainants gave evidence at trial.

[5] The trial judge considered Dr. Carr’s testimony and accepted certain aspects of it, including evidence relating to memory mechanisms. However, she found his opinion concerning the reliability of the complainants suffered from a defence bias. On the counts for which she entered convictions, the trial judge found the complainants had a reliable core memory of being sexually abused by the appellant.

[6] We do not accept the appellant’s argument that the trial judge erred in admitting Dr. Carr’s evidence on the matter of acquired or false memories. This argument is founded on the appellant’s assertion that the trial judge refused to qualify Dr. Carr to give expert evidence in the area of recovered or acquired memories. This assertion cannot stand in the face of her ruling. The trial judge did not refuse to qualify Dr. Carr as an expert in that regard. Rather, she saw the area as being “part and parcel” of the field of psychiatry. She accepted that Dr. Carr was qualified to give psychiatric evidence, including evidence of false memory syndrome. As Mr. Calarco helpfully conceded before us, having determined that the trial judge was not in error in admitting Dr. Carr’s evidence, the first and main ground of appeal would fail.

[7] In rejecting this ground of appeal, we note that the appellant, having tendered the evidence without objection at trial, cannot reverse that decision on appeal because Dr. Carr’s evidence did not have the desired effect.

[8] The appellant also argues that the trial judge erred by using Dr. Carr’s evidence to buttress the complainants’ credibility. That is, he characterizes the trial judge’s use of Dr. Carr’s evidence as oath‑helping. The trial judge recognized that the ultimate conclusion concerning the complainants’ reliability of the testimony rested with her as the trier of fact and not with the expert witness called by the defence. She accepted some of Dr. Carr’s evidence as it related to memory mechanism; she did not use it to decide the matter of the complainants’ reliability. Rather, she used it to inform her understanding of incremental memory. She gave thoughtful reasons when deciding the issue of reliability, including a careful and accurate review of the evidence of and relating to the complainants including any frailties or inconsistencies in their evidence.

[9] We turn next to a consideration of the appellant’s argument that the trial judge misapprehended the evidence. We accept that there was no evidence before the court to support the trial judge’s statement that T.K. “is a stable, married, employed and successful young man”. However, that was not a mistake of a material part of the evidence nor did it play an essential role in the reasoning process that resulted in the convictions. Thus, we would not give effect to this ground of appeal.

[10] When deciding whether the appellant was credible, the trial judge referred to letters he had written. In one such letter, the appellant wrote “No jail term or trial, billboard sign or beating could make me feel worse than I do now.” The trial judge rejected the defence position that the letters were simply expressions of remorse for the physical abuse he inflicted on A.R. and which he, the appellant, felt were justified. She found that the depth of guilt displayed in the letters went far beyond what the appellant would have felt about the physical discipline he had inflicted. She drew the inference that the letters reflected his guilt over the sexual abuse he perpetrated on A.R. The trial judge refers to the appellant’s cross-examination on the reference to billboards in his letter and states, “Mr. Hackett refused to admit that this reference to a billboard sign was to the type of billboard signs that sometimes are used in the United States for sexual offenders to be chastised”.

[11] We do not accept the appellant’s contention that this statement shows that the trial judge relied on evidence for which there was no basis, namely, that billboards are used in the United States to publicly castigate sexual offenders. Her reference to the appellant’ response to the question is made within the context of her consideration of the appellant’s credibility. She simply notes that the appellant refused to admit knowledge of that.

The Sentence Appeal

[12] Having regard to the facts of the offences and the circumstances of the appellant, the trial judge found that the paramount principles of sentencing applicable to this case were retribution, denunciation, and general deterrence. In balancing the facts of the offences with the appellant’s otherwise good behaviour in the community for 25 years, the trial judge found that the appropriate sentence was a maximum reformatory sentence of two years less a day. We do not accept the argument that the trial judge erred in principle by over-emphasising denunciation. Nor do we see any error, in these circumstances, in declining to order a conditional sentence.

DISPOSITION

[13] Accordingly, the conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is also dismissed.

“E.E. Gillese J.A.”

“R.A. Blair J.A.”

“H.S. LaForme J.A.”