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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15.
CITATION: R. v. T.E., 2007 ONCA 891
DATE: 20071219
DOCKET: C41156
COURT OF APPEAL FOR ONTARIO
LASKIN, MACPHERSON and WATT JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
T.E.
Appellant
Philip Campbell for the appellant
Lisa Joyal and Michelle Campbell for the respondent
Heard: December 13, 2007
On appeal from the conviction entered on July 22, 2003, by Justice Peter A. Cumming of the Superior Court of Justice.
BY THE COURT:
[1] The appellant was charged with sexually assaulting his stepdaughter. The trial judge, Cumming J., convicted him and imposed a sentence of 18 months’ imprisonment and three years’ probation.
[2] The appellant appeals his conviction on two grounds: (1) the trial judge erred in considering the appellant’s demeanour; and (2) the trial judge erred by permitting Crown counsel to ask the appellant why the complainant would lie about the alleged assault.
(1) The demeanour issue
[3] The trial judge wrote comprehensive reasons for judgment. He thoroughly reviewed the testimony of all the witnesses and dealt directly with many of the problems with the testimony of the complainant advanced by defence counsel.
[4] The trial judge explicitly adopted the analytical framework set out in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. On the first branch of the W. (D.) analysis, the trial judge reasoned:
I observed his demeanour carefully in giving his evidence and throughout the trial. Accused persons will react differently given the stress of a criminal trial. A judge must be very careful in drawing inferences in respect of demeanour.
[T.E.] was not at all convincing in his denial of any guilt. He made a blanket denial but his expression was completely passive. It was as though he was embarrassed by what had taken place, had detached himself from the situation and resigned himself to accepting the consequences. He made notes throughout the trial but seemed to avoid eye contact with the witnesses, including the complainant. Considering all of the defendant’s evidence, I do not believe him.
[5] The appellant contends that the trial judge’s references to the appellant’s apparent passivity and to his failure to make eye contact with the other witnesses at the trial constitute erroneous use of demeanour evidence. We agree. As the trial judge himself observed, accused persons can react differently in a stressful criminal trial. Without explaining why, and without acknowledging the effect of cultural background on demeanour (the appellant was born and raised in Sudan), the trial judge equated passivity and an absence of eye contact with witnesses with rejection of the appellant’s credibility and, ultimately, his testimonial denial of committing the offence. This equation is, in our view, a misconceived and improper linkage.
[6] The Crown does not attempt to uphold the accuracy or merit of the trial judge’s two observations about the appellant’s demeanour. Rather, the Crown contends that the trial judge relied on other evidence in rejecting the appellant’s testimony.
[7] In his analysis under the first branch of W. (D.), the trial judge did comment critically on other aspects of the appellant’s testimony. Immediately after commenting on the appellant’s demeanour, the trial judge stated:
As for [T.E.], he stated that he could have been at home at the time of the alleged offence; but said he also could have been at work. The onus is not upon [T.E.], of course, to prove his innocence. However, one would think there would be a record of his shift work schedule from his employer such that he could have established he could not have been at home at 10:00 a.m. on August 19, 1999 such that there was not even the opportunity of committing the offence. His insistence that he did not even have the opportunity to commit the alleged rape was not convincing.
[8] It is true that in this passage the trial judge is dealing with a point different from the appellant’s demeanour. However, the problem with the passage is that the first and last sentences are inconsistent. The observation that “he could have been at home at the time of the alleged offence” does not support the trial judge’s ultimate conclusion that “[h]is insistence that he did not even have the opportunity to commit the alleged rape was not convincing.” Indeed, on our reading of the appellant’s testimony, the first observation precisely reflects what the appellant said.
[9] The trial judge dealt comprehensively with the third branch of W. (D.). He was satisfied that the Crown evidence, especially the complainant’s testimony, supported a conviction. In our view, there is nothing to criticize in this component of his analysis. However, the fact remains that his reasons for rejecting the appellant’s testimony are legally flawed. Accordingly, we would give effect to the first ground of appeal.
(2) The cross-examination issue
[10] We agree with the appellant that the trial judge should not have permitted Crown counsel to ask the appellant to comment on whether the complainant had a motive to lie: see R. v. Rose (2001), 2001 CanLII 24079 (ON CA), 153 C.C.C. (3d) 225 (Ont. C.A.). However, in the circumstances of this case, we do not think that this error had any effect on the trial for two reasons: first, this was a judge-alone trial and the trial judge did not rely on the appellant’s response in any way; and second, the appellant’s answer – “I don’t know” – was innocuous and non-prejudicial. Accordingly, we would not give effect to this ground of appeal.
Disposition
[11] The first error vitiates the conviction of the appellant. Accordingly, the appeal is allowed and a new trial is ordered.
RELEASED: December 19, 2007 (“JL”)
“J.I. Laskin J.A.”
“J.C. MacPherson J.A.”
“David Watt J.A.”```