WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…

111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

CITATION: R. v. K.S., 2008 ONCA 708

DATE: 20081016

DOCKET: C44889

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Simmons and Lang JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.S. (A Young Person)

Appellant

Brian H. Greenspan, for the appellant

Eliott Behar, for the respondent

Heard: October 10, 2008

On appeal from the findings of guilt entered on February 22, 2005, by Justice Andre L. Guay of the Ontario Court of Justice.

By the Court:

[1] The appellant, a young person, appeals findings of guilt for three offences related to the sexual touching of a four and a half year old girl.

BACKGROUND

[2] From September 2003 to December 2003, the appellant, who was sixteen years old, babysat the complainant and her younger sister a number of times, including on December 21, 2003. When the complainant’s parents returned home that evening, the complainant’s sister told them that her “pee-pee” was sore. When she was asked why it was sore, she told her parents that the appellant had touched it.[^1] The complainant then stated that her “pee-pee” was also sore, and that the appellant had touched her as well. The complainant also stated that the appellant had touched her on one previous occasion, while babysitting her after school.

[3] A week later, the complainant gave a videotaped statement to the police, in which she further described the manner in which the appellant touched her vagina. She added that, on the earlier of the two described occasions, the appellant assaulted her with a Tinkertoy, saying that “he used it up my pee-pee”.

[4] A nurse examined the complainant on January 15, 2004, and found no evidence of unusual genital injury or healed injury. The hymen remained intact, and while there was some redness and a small tear below the hymen, this was not uncommon for young girls, particularly given the complainant’s recent recovery from chicken pox.

[5] The appellant was convicted at a trial before Guay J., and appeals his convictions.

ISSUES

[6] The appellant does not challenge the convictions on the basis that the trial judge reached unreasonable verdicts. Rather, he challenges the convictions on the following three bases. First, he argues that the trial judge failed to properly consider inconsistencies and improbabilities in the complainant’s evidence; second, that the trial judge applied different standards to the defence evidence than to the Crown evidence and placed undue emphasis on the appellant’s failure to testify; and third, that the trial judge failed to consider properly the expert evidence of Dr. Valliant.

1. Failure to properly scrutinize complainant’s evidence

[7] The appellant argues that when assessing the complainant’s evidence the trial judge fell into error in disregarding three matters: the inconsistency between the complainant’s description of the Tinkertoy incident and the medical evidence, the potential tainting of the complainant’s version of events before the video statement, and the potential involvement of the complainant’s brother in any sexual improprieties.

[8] We do not agree with the appellant that the trial judge erred in failing to find that the complainant’s version of the Tinkertoy event was inconsistent with the medical evidence. In our view, the trial judge properly recognized that the medical evidence provided no physical corroboration of the alleged sexual offences. However, it was open to the trial judge to interpret the complainant’s evidence in a way that was consistent with the medical evidence. The complainant did not refer to significant pain as a result of the use of the Tinkertoy. Her description of the incident was equally consistent with using the Tinkertoy in a way that would not result in injury.

[9] We do not agree with the appellant that the trial judge failed to consider the possible tainting of the complainant’s version of the events before she gave her videotaped statement. At the outset of his reasons, the trial judge stated “special attention must be paid to the defence theory that [the complainant’s] evidence is without merit because it was based on information rehearsed to her by her mother and acquired in the process of investigation.” After reviewing the evidence of potential tainting, the trial judge concluded that, because of the specific and detailed nature of the complainant’s evidence, tainting had not occurred. This finding was open to the trial judge on the evidence and we see no basis to interfere with it.

[10] Next it is argued that the trial judge failed to consider the possibility that the complainant’s brother could have committed the sexual acts that formed the subject of the charges. The trial judge considered the evidence relating to the brother’s opportunity to have committed these offences. With respect to the offence that took place on December 21, the evidence disclosed that the brother was bowling with the complainant’s parents and would have had no opportunity to commit that assault. With respect to the earlier incident, the trial judge reviewed the evidence and found that the brother had not lived or visited at the complainant’s home in the period from mid-August to mid-December, 2003. In these circumstances, the trial judge was entitled to reject the suggestion that the brother would have had the opportunity to commit the earlier offence. We see no basis to interfere with the trial judge’s conclusion.

[11] Accordingly, we would not give effect to this ground of appeal.

2. Shifting the burden

[12] The appellant argues that the trial judge erred by attaching weight to the appellant’s decision not to testify. Early in his reasons, the trial judge mentioned on two occasions the appellant’s failure to testify. However, in each instance the trial judge made it clear that he was not drawing a negative or adverse inference against the appellant. Although it may have been preferable if the trial judge had not referred to the appellant’s failure to testify, we are not satisfied on reading his reasons as a whole that he shifted the burden or used this consideration in any improper way.

[13] Towards the end of his reasons, in dealing with the weight to be attached to the evidence of an expert called by the appellant with respect to his psychological profile, the trial judge again referred to the fact that the appellant had not testified. The lack of evidence from the appellant was a relevant consideration in the trial judge’s assessment of this issue. It is important to note that at that point the trial judge was not referring to the failure to testify in the context of his analysis of the strength of the Crown’s case.

[14] We would not give effect to this ground of appeal.

3. The appellant’s expert evidence

[15] The appellant argues that the trial judge erred in failing to properly consider the evidence of Dr. Valliant, an expert called by the defence to testify that the appellant did not exhibit any of the general characteristics of sexually deviant behaviour and that it was therefore unlikely that he committed these offences. The trial judge considered this evidence and concluded that it was not helpful. As we have said, in reaching this conclusion, it was open to the trial judge to consider the absence of evidence at trial to support the expert’s opinion, including the absence of evidence from the appellant. We see no error in the trial judge’s conclusion and we would not give effect to this ground of appeal. In saying this, we should not be taken as agreeing that the evidence was admissible in the first place.

DISPOSITION

[16] The appeal is therefore dismissed.

RELEASED: October 16, 2008 “D. O’Connor A.C.J.O.”

“Janet Simmons J.A.”

“DRO” “S.E. Lang J.A.”

[^1]: The Crown called no evidence on similar charges relating to the complainant’s sister and directed verdicts were granted respecting those charges.