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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
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. 205, c. 32, s. 15.
CITATION: R. v. Haggart, 2010 ONCA 58
DATE: 20100126
DOCKET: C49172
COURT OF APPEAL FOR ONTARIO
Moldaver, Cronk and Lang JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
And
Clinton Haggart
Appellant
Michael W. Lacy, for the appellant
Kim Crosbie, for the respondent
Heard: January 19, 2010
On appeal from the conviction entered by Justice Paul Kane of the Superior Court of Justice, dated April 11, 2008.
ENDORSEMENT
[1] The appellant appeals from his conviction for sexual assault and two related breach of probation charges. He raises the following three grounds of appeal:
(1) The trial judge impermissibly used certain evidence to confirm the complainant’s testimony that she had been sexually assaulted by the appellant;
(2) The trial judge’s reasoning process was tainted by Crown counsel’s improper and unfair questioning of the appellant; and
(3) The trial judge failed to correctly apply the principles in R. v. W.(D.) in arriving at his credibility findings.
[2] For the reasons that follow, we do not accept these grounds of appeal. Accordingly, the appeal must be dismissed.
Ground One: Improper use of evidence to confirm the complainant’s testimony
[3] This ground of appeal hinges on the appellant’s contention that, because the complainant was an admitted alcohol and drug addict and as she acknowledged having lied about her desire to obtain crack cocaine from the appellant, both to the police and while under oath at the appellant’s preliminary inquiry, a conviction could not be based on her evidence alone; rather, independent confirmatory evidence of her account of events was required.
[4] Within that framework, the appellant points to two items of information contained in a sexual assault report prepared shortly after the alleged incident, which he says the trial judge improperly found to be confirmatory of the complainant’s evidence. The two items in question form part of the recorded observations of the complainant’s condition shortly after the alleged assault. They are as follows:
(1) TEARS – tears, ecchymosis abrasions redness swelling; and
(2) Posterior Fourchette and Introitus: 1 cm area of redness very tender when swabbed.
[5] The Crown concedes that the second of these items was not confirmatory of the complainant’s evidence but, rather, was a neutral factor. In other words, it did not assist in determining whether the admitted sex between the appellant and the complainant was non-consensual. The Crown also concedes that the trial judge’s reliance on the first factor, which was simply an explanation of an acronym, arose from his misapprehension of the evidence.
[6] At the same time, the Crown points to three other items in the same report that are confirmatory of the complainant’s evidence and that the trial judge properly referenced in his reasons, namely:
(1) fine scratches on the complainant’s left buttock;
(2) abraided [sic] area on the complainant’s shoulder; and
(3) fine grains of dirt – one collected on genital swab.
[7] Those three items, the Crown submits, are consistent with the complainant’s claim that the sexual assault occurred on a dirt path while she was lying on her back after being forced to the ground by the appellant. They are not consistent with the appellant’s evidence that he and the complainant engaged in consensual sex earlier that day on a bed in the complainant’s trailer.
[8] The Crown also points to other items of confirmatory evidence that the trial judge properly considered, including the evidence of the complainant’s prolonged distraught condition and her dirty clothing, the latter of which supports her testimony that she had been forced to the ground.
[9] The appellant accepts that the items referred to by the Crown are potentially confirmatory of a sexual assault. Nonetheless, he submits that the two challenged items from the sexual assault report, above-described, were highly material. In particular, he contends that the first item (the explanation of the acronym), more than anything else, attests to the forcible nature of the alleged sexual encounter. He argues, therefore, that this item must have figured prominently in the trial judge’s conclusion that the complainant had been sexually assaulted. As the Crown cannot show that the verdict would inevitably have been the same had the trial judge not considered this item, a new trial is required.
[10] We disagree. The appellant’s argument is based on the false premise that the trial judge viewed this as a case in which it would be unsafe to register a conviction on the complainant’s evidence, without more.
[11] The trial judge was alive to the complainant’s drug and alcohol problems, but he provided cogent reasons for concluding that they did not affect her ability to recall the crucial events giving rise to the charge of sexual assault. Likewise, he found that her alcohol consumption on the day in question was not material to her recollection of the events. Those findings were open to the trial judge and we see no basis for interfering with them.
[12] The trial judge was also alive to the complainant’s “lies” to the police and her false evidence at the preliminary inquiry concerning her desire for crack cocaine. Nonetheless, he accepted the complainant’s explanation for why she had not told the truth and did not find her lies on this issue determinative of the “other evidence as to what occurred [on the day in question].” This, too, was a finding within the trial judge’s purview and we see no basis for interfering with it.
[13] In our view, those findings undercut the appellant’s submission that confirmatory evidence was essential to warrant a conviction. The trial judge did not view this as a case in which it would be dangerous to convict on the evidence of the complainant absent confirmatory evidence. In the initial part of his reasons, he carefully considered the evidence of the complainant and that of the appellant and provided coherent reasons for accepting the complainant’s version of events and rejecting the appellant’s testimony. Hence, it was technically unnecessary for him to search for confirmatory evidence.
[14] However, having elected to do so, the trial judge properly relied on the evidence of the complainant’s emotional condition, her dirty clothing, the abrasions and scratches on her shoulder and buttock, and the grains of dirt found on the vaginal swab, all of which he viewed as confirmatory of her testimony. The trial judge made no error in doing so.
[15] Viewed in that light and reading his reasons as a whole, we agree with the Crown’s submission that the trial judge’s misapprehension of one entry in the sexual assault report and his description of a neutral factor as confirmatory evidence are inconsequential. There was more than ample evidence to support the trial judge’s finding that the complainant had been sexually assaulted as she claimed.
Ground Two: The trial judge’s reasoning process was tainted
[16] The appellant argues that the Crown engaged in improper cross-examination by putting the appellant in the position of having to explain matters that were beyond the realm of his knowledge. The effect of this, the appellant submits, was to place a burden on the appellant to explain the complainant’s actions. The appellant argues that his inability to respond to the Crown’s improper questions in cross-examination shaped the trial judge’s adverse credibility findings against him.
[17] We agree with the appellant that, on several occasions, Crown counsel [not Ms. Crosbie] exceeded the bounds of permissible cross-examination, as alleged. That said, we are not persuaded that this influenced the trial judge’s reasoning process. In arriving at his credibility findings, the trial judge made no reference to the appellant’s evidence in respect of the impugned questioning or to his inability to respond to that questioning. On the contrary, the trial judge’s credibility assessment was grounded on other proper factors.
[18] Accordingly, we would not give effect to this ground of appeal.
Ground Three: Alleged W.(D.) error
[19] The appellant argues that the trial judge erred in his application of the principles in R. v. W.(D.). In support of this position, he points to the erroneous submissions made to the trial judge by the Crown concerning R. v. W.(D.).
[20] We do not accept this submission. While we acknowledge that the Crown’s submissions on this issue were flawed, the trial judge’s reasons show that he was alert to and properly applied the W.(D.) principles.
Disposition
[21] Accordingly, the appeal is dismissed.
Signed: “M. J. Moldaver J.A.”
“E. A. Cronk J.A.”
“S. E. Lang J.A.”