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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.M.C., 2008 ONCA 619

DATE: 20080911

DOCKET: C46407

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman and Juriansz JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

T.M.C.

Appellant

W. John McCulligh for the appellant

Megan Stephen for the respondent

Heard: September 5, 2008

On appeal from the conviction imposed by Justice Arthur M. Gans of the Superior Court of Justice dated October 26, 2006.

ENDORSEMENT

[1] The appellant appeals his conviction by a Superior Court Judge sitting alone and sentence for the assault and sexual assault of his stepdaughter between the years 1972 and 1975. The complainant was then between the ages of 12 and 14 years.

[2] During the trial, the trial judge commented repeatedly on the Crown’s failure to lead evidence from the complainant’s two older sisters about the nature of their relationship with the appellant. Both older sisters left the family home at young ages.

[3] In his reasons for judgment the trial judge stated:

The instant case, in my view, was made all the more difficult because the Crown at the preliminary hearing, for reasons that escape me, determined to prosecute the case without using all the evidence which was seemingly available to her. Apparently, the trial Crown proceeded along the same evidentiary path, which, in my opinion, limited the prosecutorial options and placed the Court in a most difficult position.

[4] He also said this in his reasons for judgment:

Unfortunately, while this evidence was clearly available, I did not hear from either of Ms. F.’s sisters about the family dynamic under which each of these women lived before they, themselves, left the family home to take up living arrangements while in their late teens at the homes of friends. Indeed, no attempt was made by the Crown to lead what would arguably be described as similar fact evidence, if it were available, of at least one sexual assault on the middle of Ms. F.’s sisters. This strategy was regrettable, but, not fatal.

[5] The appellant’s main contention is that the trial judge decided the case on evidence he believed should have been called in the trial but never was. The appellant contends that the trial judge relied on his tacit inference that the appellant sexually assaulted the complainant’s sisters to bolster the credibility of the complainant. The appellant characterizes the trial judge’s error as a misapplication of W.(D.), 1991 CanLII 93 (SCC), [1991] 63 C.C.C. (3d) 397 (S.C.C.) or as a misapprehension of the evidence.

[6] The Crown acknowledges that the judge was concerned about the Crown’s decision not to lead evidence from either of the complainant’s sisters about the family dynamics in their home. The Crown submits that what the judge said during the course of the trial and counsels’ oral submissions should be kept distinct from his final reasons for judgment, and that those final reasons for judgment indicate that his decision was based solely on the evidence admitted at trial.

[7] While the trial judge set out the proper approach to W.(D.) in his recitation of the law, his analysis began by considering whether the evidence of the complainant was to be “preferred” to that of the appellant. He briefly commented negatively on the appellant’s selective memory, although he did not expressly reject the appellant’s evidence. He then proceeded directly to the third branch of W.D. accepting that the complainant’s evidence satisfied him of the appellant’s guilt beyond a reasonable doubt, even though he said he was “left scratching my head about some of her evidence, which was either not developed well enough or otherwise supported by other evidence or called into question by an effective and understated cross examination...”. He provided no further detail.

[8] The trial judge also identified certain other matters he indicated were important to his reasoning. He said:

in my view, the events of [the older sister’s] quick return to Toronto in the wake of a call from the complainant’s girlfriend, remarkably during hockey training camp, the complainant’s complete relocation to Maryland shortly thereafter, the retainer of solicitors by both sides to the alleged events, the complainant’s legal rather than de facto adoption by her sister and her then brother-in-law, the lack of reconciliation or even an attempt at the same by the complainant’s mother, who had by then essentially lost three daughters were more than a little telling.

[9] The trial judge did not explain why this conduct of other members of the family was “more than a little telling”. In our view, this passage from the brief reasons is highly problematic.

[10] First, the fact the appellant retained a lawyer upon being accused of sexual assault cannot be viewed as consciousness of guilt.

[11] Second, the trial judge did not indicate what he considered significant about the complainant’s sister’s quick return to Toronto. On one hand, he could naturally infer that the sister was gravely concerned and responded urgently to the reported sexual assault of her younger sister. Such an inference, however, would not be especially “telling”. On the other hand, the inference that the sister’s immediate response is explained by her own victimization by the appellant would be telling, but impermissible in the absence of admissible evidence from the sister that she too had been physically, if not sexually, abused, and there was none.

[12] Where a trial judge’s reasons are ambiguous, resort may be had to his or her interlocutory comments in order to better understand them.

[13] During the closing submissions of defence counsel, the trial judge commented on the complainant’s sister’s quick return. He said:

... but there was not a hesitation on her part just to come up. So some inference, I think, can be drawn that she herself was quite prepared, for her own historic connection to this gentleman, to come up on a moments notice...” (emphasis added).

[14] Such an inference would be aptly described as “more than a little telling” but was impermissible on the record. We accept the appellant’s contention that it would appear that the trial judge inferred that the sister responded immediately because of “her own historic connection” to the appellant.

[15] Third, the trial judge’s remark that the complainant’s mother “lost three daughters” is a further indication that he inferred that, to the mother’s knowledge, the older sisters also suffered, or at least alleged abuse by the appellant. The mother did not testify and, as indicated earlier, the Crown made no attempt to lead similar fact evidence from the complainant’s sisters.

[16] We agree there is an appearance from the reasons that the trial judge speculated about possible abuse by the appellant of the two older sisters and took that speculation into account when concluding that the Crown had proved the sexual assault of the complainant beyond a reasonable doubt. The nature of the appellant’s relationship with the complainant’s sisters was not relevant to the case as it was presented by the Crown.

[17] Because of this error, this is not an appropriate case to maintain the conviction by applying the proviso in s. 686 (1)(b)(iii)of the Criminal Code. Accordingly the appeal is allowed, the conviction is set aside and a new trial ordered.

“M. Rosenberg J.A.”

“K. Feldman J.A.”

“R.G. Juriansz J.A.”