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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Caldwell, 2009 ONCA 407
DATE: 20090515
DOCKET: C47850
COURT OF APPEAL FOR ONTARIO
Doherty, Goudge and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Nelson Caldwell
Appellant
J. Scott Cowan, for the appellant
Linda A. Shin, for the respondent
Heard and orally released: May 5, 2009
On appeal from the conviction entered by Justice R.J. Haines of the Superior Court of Justice, sitting without a jury, on March 26, 2007, and the sentence imposed on April 30, 2007.
ENDORSEMENT
[1] The appellant was convicted of sexual assault after a trial before a judge sitting without a jury. The complainant was the thirteen year old daughter of the woman with whom the appellant was living at the time.
[2] This case turned entirely on the credibility of the complainant and the appellant. Both testified. The complainant described a single event in which the sexual assault allegedly occurred and the appellant denied that that event occurred. The Crown’s case rested entirely on the complainant’s evidence.
[3] The trial judge concluded that the appellant was not a credible witness and that the appellant’s denial did not leave him with a reasonable doubt. In coming to that conclusion, the trial judge referred to three parts of the appellant’s evidence as the bases upon which he rejected the appellant’s evidence as incredible. Having reviewed the transcripts both before and during counsel’s submissions, we are satisfied that the trial judge misapprehended the evidence underlying all three bases upon which he rejected the appellant’s evidence as incredible.
[4] One of the reasons the trial judge rejected the appellant’s evidence is found in the passage quoted below:
I also find it difficult to accept Mr. Caldwell’s evidence that over the one-year period he lived with M.B. there was no occasion when he was alone with A.B. at the trailer. I therefore reject Mr. Caldwell’s testimony …
[5] In fact, the appellant’s evidence both in-chief and in cross-examination was that he could not recall any day in which he arrived home for lunch at the trailer to find the complainant there alone. It was her allegation that the assault had occurred when he came home for lunch. There was no evidence from any other witness that conflicted with this part of the appellant’s testimony. In fact, the evidence of the complainant’s mother was that the complainant spent little time at the trailer and spent most of her time in the town. Properly understood, there was nothing inherently incredible or unworthy of belief in the appellant’s evidence that he could not recall the complainant being alone at the trailer when he arrived home for lunch. The trial judge appears to have viewed the evidence as a global denial of ever being alone with the complainant. The trial judge misapprehended the evidence.
[6] The second reason the trial judge gave for the outright rejection of the appellant’s testimony is set out below:
In his examination-in-chief his responses were unequivocal. He testified that he had had problems with drug abuse but he had put those behind him before he met M.B. Yet in cross-examination he conceded that he had continued to use drugs with M.B.
[7] This is not an accurate summary of the appellant’s evidence. Properly understood, there is no real inconsistency on this point between his evidence in-chief and his cross-examination. In-chief, the appellant testified that he had a drug problem earlier in his life and that he got help for that problem. He testified that he was not using drugs when he met the complaint’s mother and that after they were together he found out that she was a drug user. After one particularly bad episode, he forcefully removed her from the trailer and their relationship ended. The appellant was not asked anything during examination-in-chief about his use of drugs during the relationship. It cannot be said that he unequivocally indicated that he was not using drugs during the relationship.
[8] In cross-examination he was specifically asked about drug use during the relationship. He answered that question by acknowledging that on a few occasions he had slipped and had used drugs with the complainant’s mother. There is no inconsistency between that answer and the answers he gave in-chief. The trial judge misapprehended the evidence in finding a material inconsistency.
[9] The third reason the trial judge gave for rejecting the appellant’s evidence arose out of an alleged inconsistency between the appellant’s evidence in-chief and the evidence he gave on cross-examination concerning his attitude towards the complainant’s mother after the confrontation that resulted in the termination of their relationship. As with the second basis upon which the trial judge rejected the appellant’s evidence, on a fair reading of the examination-in-chief, which was very brief, and the cross-examination, we cannot see any material change in the evidence during cross-examination. The appellant was simply asked about additional matters in cross-examination that were not put to him during his examination in-chief. He answered the questions put to him on cross-examination and provided additional information. That does not amount to giving inconsistent evidence. Once again, we are satisfied the trial judge misapprehended this part of the evidence.
[10] The misapprehensions are significant and material to the outcome. The verdict cannot stand. The conviction is quashed and a new trial is ordered.
“Doherty J.A.”
“S.T. Goudge J.A.”
“Robert P. Armstrong J.A.”