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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. S.H., 2010 ONCA 515
DATE: 20100719
DOCKET: C51636
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Rouleau and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Simon H.
Appellant
Richard Litkowski, for the appellant
Grace Choi, for the respondent
Heard & released orally: July 14, 2010
On appeal from the conviction imposed by Justice Douglas K. Gray of the Superior Court of Justice dated September 4, 2007.
ENDORSEMENT
[1] We find it necessary to address only two of the appellant’s grounds of appeal.
[2] First, the appellant submits that the trial judge erred in the manner by which he decided to accept the evidence of one of the complainants and reject the appellant’s evidence.
[3] Central to this submission is the trial judge’s reliance upon principle in Browne v. Dunn to discount the appellant’s evidence.
[4] In our view, the trial judge did not err in concluding that there had been a breach of the principle in Browne and Dunn. There were a number of points that the appellant testified to on which the complainant had not been cross-examined. It is not necessary that counsel put every potentially contradictory detail to a witness. However, fairness requires that counsel give the witness the opportunity to address those matters that will later be used to impeach the witness. Failure to do so may, in some cases, be taken into account in assessing the credibility of the witness giving the contradictory evidence. Drawing the line is not always easy.
[5] In the present case, the appellant gave a very detailed description of the events on the night the sexual assault occurred. This description was markedly different from the description given by the complainant. There were several parts of the appellant’s description that were significant enough, in our view, that the complainant should have been given an opportunity to respond.
[6] The appellant argues that the appropriate remedy for breach of the principle was recalling the complainant so she could be asked the questions in issue. He argues that the trial judge erred in using the failure to cross-examine the complainant in assessing the appellant’s evidence without giving the opportunity to have the complainant recalled.
[7] The difficulty with this argument is that in this case the trial judge made it clear in the course of closing submissions that he was considering taking the failure to cross-examine into account. Defence counsel was therefore on notice of this possibility and did not ask that the witness be recalled in order to avoid the trial judge taking the breach into consideration.
[8] In the end, the trial judge’s decision to take the failure to cross-examine the complainant into consideration is a matter of discretion – see R. v. Giroux, (2006), 2006 CanLII 10736 (ON CA), 207 C.C.C. (3d) 512 (Ont. C.A.). We see no basis to interfere with the trial judge’s exercise of discretion in this respect. We are not persuaded that there was any unfairness in the evaluation of the appellant’s evidence.
[9] The second ground of appeal is that the trial judge erred in finding that the appellant was evasive and unresponsive in cross-examination. This is a matter best assessed by the trial judge. On this record we see no basis to interfere.
[10] Counsel for the appellant advised that the appellant will not be pursuing the sentence appeal and will be filing a notice of abandonment.
[11] As a result, the appeal against conviction is dismissed.
“D.R. O’Connor A.C.J.O.”
“Paul Rouleau J.A.”
“Gloria Epstein J.A.”