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of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with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: 20060117

DOCKET: C44151

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. JACQUES ROUSCHOP (Appellant)

BEFORE:

DOHERTY, SHARPE and JURIANSZ JJ.A.

COUNSEL:

John L. Hill

for the appellant

Susan Magotiaux for the respondent

HEARD:

January 10, 2006

On appeal from the conviction entered by Justice P.R. Belanger of the Ontario Court of Justice dated December 16, 2004 and the sentence imposed dated March 19, 2005.

E N D O R S E M E N T

[1] The appellant was convicted of assault and touching for a sexual purpose. The complainant was the twelve year old daughter of the appellant’s girlfriend.

[2] The complainant testified that the appellant struck her on the face four times and she fled to a friend’s home. Her mother was called. After the complainant told her mother what the appellant did, her mother asked whether the appellant had “ever touched her before in a way that made her feel uncomfortable”. The complainant said that he had. The complainant’s mother took her to the hospital and about a day later to the police. The complainant gave a videotaped statement describing two incidents where the appellant had pushed her on to her bed and touched her vagina and breasts. Those incidents had occurred about two or three months before the videotaped statement was given.

[3] The complainant testified at trial. The trial judge also admitted into evidence the videotaped statement made by the complainant less than two days after the alleged assault. In her oral testimony, the complainant embellished somewhat on the allegations she had made in the videotaped statement. The complainant’s mother also testified. It was clear from her evidence that she was strongly hostile to the appellant and had gone so far as to try to get him to breach his bail so that he would be held in custody pending trial. The friend to whose apartment the complainant fled testified that the complainant was very upset when she arrived at the apartment. The appellant did not testify.

[4] The trial judge accepted the complainant’s evidence concerning the physical assault despite the fact that there were no physical signs of that assault. The trial judge did not accept the complainant’s oral testimony concerning the alleged acts of sexual touching. He found that the intense animosity between the appellant and the complainant’s mother had over the time between the events and the trial effectively tainted the complainant’s memory so that by the time she testified her recollection of the relevant events was not reliable. The trial judge did accept as reliable and accurate the description of the sexual touching giving by the complainant in her videotaped statement. The trial judge held the tainting described above did not affect the statement made within two days of the allegation. The trial judge convicted the appellant based on the allegations made in the videotaped statement.

[5] Counsel for the appellant argued that the trial judge erred in admitting the complainant’s videotaped statement. He contended that the statement was not made within a reasonable time after the alleged offence as required by s. 715.1 of the Criminal Code and that the complainant did not adopt the statement as true in her oral testimony. There is no merit to either submission. At trial, counsel conceded that the statutory preconditions to the admissibility of the videotaped statement were established. Counsel also conceded that the complainant had adopted the videotaped statement as true in her oral testimony. A review of the trial record justifies both concessions.

[6] Counsel for the appellant also argues that the trial judge misapplied the concept of reasonable doubt. Counsel contends that the trial judge placed an onus on the appellant to raise a doubt as to the veracity of the complainant’s videotaped evidence. In effect, counsel contends that the trial judge called upon the appellant to give him a reason for disbelieving the complainant’s videotaped statement, when the trial judge should have decided whether, on the entirety of the evidence he was satisfied beyond a reasonable doubt that the complainant was telling the truth. Counsel further contends that on the evidence there was an opportunity for the mother to taint the complainant’s memory before the videotaped statement was made, and that given the trial judge’s finding that the mother’s conduct subsequently did taint the complainant’s testimony, it was unreasonable for the trial judge to not at least have a doubt as to whether the mother had influenced the complainant before the making of the videotaped statement.

[7] Considered in isolation, there are passages in the trial judge’s reasons that offer some support for the appellant’s submission that the trial judge placed an onus on the appellant to raise a doubt as to the veracity of the complainant’s videotaped statement. Considering the reasons as a whole, however, we are satisfied that the trial judge properly applied the burden of proof to the facts as he found them after a thorough review of all of the evidence. The trial judge’s reasons demonstrate an appreciation of the evidence and a careful assessment of the reliability and credibility of the complainant’s evidence, both as given in court and as provided by way of the videotaped statement. The appellant has failed to demonstrate that the trial judge improperly applied the burden of proof.

[8] The appeal is dismissed.

“Doherty J.A.”

“R.J. Sharpe J.A.”

“R.G. Juriansz J.A.”