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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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) an 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.
CITATION: R. v. H.A., 2007 ONCA 530
DATE: 20070716
DOCKET: C44227
COURT OF APPEAL FOR ONTARIO
ARMSTRONG, JURIANSZ and LaFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
H. A.
Respondent
Riun Shandler, Nadia Thomas and Michelle Campbell for the appellant
Peter Brauti and Jennifer A. McKendry for the respondent
Heard and released orally: June 21, 2007
On appeal from the acquittals entered by Justice Barry H. Matheson of the Superior Court of Justice on September 1, 2005.
ENDORSEMENT
[1] Counsel raises three issues in this Crown appeal:
the trial judge erred in failing to admit the evidence of each of the complainants as similar fact evidence;
the trial judge erred in failing to admit the decision of the Complaints Committee of the College of Physicians and Surgeons which advised the accused to have a third party present during physical examinations of his patients; and
the trial judge erred in permitting the accused's counsel to cross-examine two of the complainants on reports of other complaints they made of sexual abuse. The trial judge compounded this error by failing to give a limiting instruction to the jury in respect of this evidence.
[2] On the rejection of the similar fact evidence the trial judge concluded:
Because of the amount of publicity, and the number of the complainant witnesses [who] discussed the matter before going to the police amongst themselves, I am satisfied that there is some indication that the evidence is tainted. There may not be collusion, but there is the appearance that it might be.
[3] This conclusion makes evident that the trial judge considered there was an air of reality to the allegation of collusion and that the Crown had not satisfied the burden on it to show on a balance of probabilities that the evidence was not the product of concoction. See R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 (S.C.C.) at para. 41. We are satisfied that the trial judge applied the correct test and we would defer to the exercise of his discretion.
[4] In respect of the second issue, the Crown at trial sought to file what was said to be a decision of the Complaints Committee of the College of Physicians and Surgeons that concluded with advice to the accused that he have a third-party present during intimate physical examinations. The trial judge refused to admit this evidence on the basis that its prejudicial effect exceeded its probative value. We see no error in this exercise of his discretion.
[5] Crown counsel further submitted that its cross-examination on this issue was erroneously limited when the accused took the witness stand. We would not give effect to this argument as the record indicates that Crown counsel did not lay sufficient ground-work to permit him to cross-examine the accused on the advice contained in the decision of the Complaints Committee.
[6] In regard to the third ground, Crown counsel conceded in the appeal that some cross-examination on the prior complaints of sexual abuse made by two of the complainants was permitted by the principle in R. v. Riley (1992), 11 O.R. (3d) 151 (C.A.). However, the Crown argues that the defence went too far in its cross- examinations and thereby breached the rule against leading evidence on collateral matters. We disagree.
[7] Crown counsel further submits that the trial judge erred in instructing the jury in regard to one complainant as follows:
Defence counsel also raised an issue that she is not afraid to go to the police. He draws attention to two police reports. One where her daughter was allegedly [stalked] by someone and someone called Dustin assaulted her daughter. Apparently the police report indicated that there was nothing to be found along those lines. That is all evidence to be taken into account [in] assessing the credibility of the witness.
[8] As the complainant had tacitly acknowledged what the police reports said, we see no error in the trial judge instructing the jury that it could consider the cross-examination about the police reports in assessing the witness's credibility. The jury could have used the information for no other purpose as the events referred to in the police reports had no other relevance to the charges before the court.
[9] The appeal is therefore dismissed.
“Robert P. Armstrong J.A.”
“R.G. Juriansz J.A.”
“H.S. LaForme J.A.”