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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. J.S., 2010 ONCA 606
DATE: 20100920
DOCKET: C50303
COURT OF APPEAL FOR ONTARIO
Laskin, Sharpe and Epstein JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
J.S.
Appellant
Timothy E. Breen, for the appellant
Holly Loubert, for the respondent
Heard: September 13, 2010
On appeal from the conviction entered by Justice E. Belobaba of the Superior Court of Justice, sitting with jury, dated August 27, 2008
By The Court:
[1] The appellant raises two grounds of appeal against his conviction on three counts of having sexual intercourse with a female person not his wife and under the age of 14 from January 1978 to December 1982.
Facts
[2] The complainant was the appellant’s stepdaughter. In addition to the three incidents charged in the indictment, evidence was given of a fourth incident when the complainant's mother and five-year-old brother returned home to find the appellant in the bedroom with the complainant. The complainant was on the bed, naked, and the appellant was standing beside the bed pulling up his pants. Both the complainant and her brother testified that their mother, G.S., yelled at the appellant and kicked him out of the apartment. G.S. allowed the appellant to return to the house within approximately one week and thereafter the sexual abuse against the complainant ceased. G.S. did not testify, nor did the appellant.
Issue 1. Did the trial judge err by failing to charge the jury as to the limited use of the evidence that G.S. had kicked the appellant out of the apartment?
[3] The trial judge instructed the jury that the evidence that G.S. had kicked the appellant out of the apartment could only be used for the purpose of assessing the complainant’s overall credibility. The trial judge further cautioned the jury: “You cannot use this evidence to reason that because [the appellant] was found ‘pulling up his pants’ on this one occasion he must have committed the offences on the other three occasions for which he has been charged.”
[4] The appellant submits that the evidence of G.S.’s conduct contains an implied assertion that she had caught the appellant in the act of molesting the complainant and that the use of G.S.’s conduct to support such an inference offends the rule against hearsay. The appellant concedes that the evidence of G.S.’s conduct was admissible as part of the narrative and that it was relevant to assessing the complainant’s account of the timing and cessation of the alleged historic sexual assaults. However, the appellant argues that the trial judge was required to direct the jury that they could not use the evidence of G.S.’s conduct to support an inference that she had caught the appellant molesting the complainant. Related to this argument is the fact that during its deliberations the jury asked if there were any legal reasons why G.S. did not testify.
[5] We do not agree that the trial judge erred by failing to give any further instruction in relation to the evidence of G.S.’s conduct.
[6] The appellant’s trial counsel did not request such an instruction during the pre-charge conference in which the trial judge presented his draft charge, nor was any objection taken to the charge that was delivered. The appellant’s trial counsel also agreed with the manner in which the trial judge answered the jury’s question.
[7] Trial counsel's failure to object is not dispositive but does lend support to the respondent Crown's position that the instruction given by the trial judge was entirely adequate in the circumstances of this case.
[8] Even if the evidence of G.S.’s reaction to the fourth incident constitutes ‘hearsay by conduct’– a point we need not decide – the limiting instruction to the jury was adequate. The jury would have understood from the trial judge’s instruction that even if it might be inferred from the fourth incident that the appellant had been found molesting the complainant, that was not evidence that could be used to determine whether or not he had committed the acts alleged in the three counts of the indictment.
[9] Accordingly, we do not give effect to this ground of appeal.
Issue 2. Did the trial judge err by failing to instruct the jury as to the significance of evidence of discussions between the complainant and her brother?
[10] We agree with the appellant that there was some evidence that the complainant and her brother had discussed the fourth incident before her brother spoke to the police and that given the age of her brother at the time of the fourth incident, this could have affected his evidence.
[11] The trial judge might well have instructed the jury to take the discussions into account in deciding the weight to be attached to their evidence as to the fourth incident. However, we do not agree that in the circumstances of this case such an instruction was mandatory or that the trial judge erred by failing to give it. We agree with the respondent Crown that this was not a similar fact case where the probative value of the evidence is derived from the objective improbability of two people coincidentally giving remarkably similar evidence. Both the complainant and her brother testified as to the same incident of prior discreditable conduct and it was open to the trial judge to conclude that no special instruction was required as to the possibility that there had been some collaboration. Collaboration was an issue the defence was entitled to argue, and in his summary of the defence position, the trial judge did mention the discussion between the complainant and her brother. However, collusion was not an issue upon which the judge was required to instruct the jury.
[12] Accordingly, we do not give effect to this ground of appeal.
Conclusion
[13] For these reasons, the appeal against conviction is dismissed.
“John Laskin J.A.”
“Robert J. Sharpe J.A.”
“Gloria Epstein J.A.”
RELEASED: September 20, 2010