WARNING
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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. R.H., 2010 ONCA 758
DATE: 20101110
DOCKET: C50607
COURT OF APPEAL FOR ONTARIO
Rosenberg, Cronk and Epstein JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
R. H.
Appellant
Timothy E. Breen, for the appellant
Joanne K. Stuart, for the respondent
Heard: October 21, 2010
On appeal from the conviction entered by Justice Roland J. Haines of the Superior Court of Justice, dated March 12, 2009.
By The Court:
[1] The appellant appeals against his conviction by Haines J. on the charge of touching for a sexual purpose contrary to s. 153(a) of the Criminal Code. [^1] The appellant raises two grounds of appeal. First, he submits that the trial judge erred in admitting evidence of prior consistent statements and then using those statements to bolster the credibility of the complainant. Second, he submits that the trial judge erred in his assessment of the complainant’s evidence, in particular, the manner in which he resolved serious inconsistencies in her evidence. For the following reasons, the appeal is dismissed.
The Prior Consistent Statements
[2] During examination-in-chief, Crown counsel led evidence from the complainant of statements she made to school friends during the years that she said the abuse took place and a complaint that she made to her grandmother that led to the authorities being notified and the charges being laid. The appellant does not question the admissibility of the latter evidence or the use the trial judge made of it. The only issue is the admissibility and use of the statements to the school friends. There was no objection at trial by defence counsel (not Mr. Breen) to the admission of this evidence.
[3] Generally, it is not open to Crown counsel to lead evidence of prior consistent statements from a complainant during her examination-in-chief. Statements such as those made by the complainant, in this case to her school friends, which were made many years before the complaint was made that led to charges being laid, are not admissible as narrative in accordance with this court’s decision in R. v. F. (J.E.) (1993), 1993 CanLII 3384 (ON CA), 16 O.R. (3d) 1. Ordinarily, it is not open to the Crown to lead evidence of prior consistent statements simply in anticipation that the defence may allege recent fabrication: see R. v. R. (S.) (1992), 8 O.R. (2d) 679 (Ont. C.A.).
[4] In this case, however, we are satisfied that the evidence was properly admitted. We attach considerable weight in that respect to defence counsel’s failure to object. It became clear within minutes of the cross-examination of the complainant that it was a theory of the defence that the complainant made these allegations as part of the group dynamic at school. Essentially, the defence alleged that in order to feel included and accepted by her schoolmates, the complainant made the allegations against her father, the appellant. Thus, it was inevitable that evidence of the statements would be elicited from the complainant to support the appellant’s defence. Once the statements were properly admitted for that purpose, they were also available for other legitimate purposes.
[5] Moreover, as the case developed, the statements were admissible to rebut an allegation of recent fabrication made by the defence during cross-examination of the complainant. Around the time that the complaint was made to the grandmother, the complainant’s mother became ill. The complainant was questioned to the effect that she made the complaint against the appellant so that she could live with her mother in the city, despite her mother’s illness, rather than in the country with her father. The fact that the complainant had made prior statements to her school friends before this motive to fabricate arose was admissible to rebut the suggestion of recent fabrication.
[6] In our view, the trial judge did not misuse the evidence of prior statements. He made only passing reference to it in his reasons, noting that the Crown relied on the complainant’s statements to school friends to rebut the allegation of recent fabrication.
[7] The appellant also submits that, since evidence to support the group dynamic theory had been introduced, it was incumbent upon the trial judge to deal with that evidence expressly. The difficulty with that submission on this record is that it appears that by the end of the case, the defence had abandoned the group dynamic theory. Certainly, it played no part in defence counsel’s final submissions, which focused entirely on the alleged inconsistencies in the complainant’s evidence. The appellant has not alleged ineffective assistance of counsel.
[8] Accordingly, we would not give effect to this ground of appeal.
Inconsistencies in the Complainant’s Evidence
[9] The appellant also submits that the trial judge failed to adequately deal with inconsistencies in the complainant’s testimony. There is no question that the trial judge recognized that there were some inconsistencies in the complainant’s testimony. The submission is, however, that the trial judge erred in the way that he resolved them. Some of the alleged inconsistencies were relatively minor and could be explained by the complainant’s young age at the time the incidents occurred or by uncertainty as to the exact timing of events. An example is provided by the sofa incident. The complainant testified to a particular incident when she and the appellant were going to purchase or pick up a sofa. The appellant’s partner testified that she was present on these trips with the appellant and the complainant and that no sexual incident occurred. The trial judge resolved this issue by finding that the complainant was referring to another trip, other than when the appellant’s partner was present. There was a basis in the evidence for this finding. In particular, the appellant’s partner claimed that the second trip took place after the appellant’s arrest. She was obviously in error, because after the arrest, the appellant had no further contact with the complainant. The important point, however, is that even on the evidence of the appellant’s partner, more than one sofa-related trip took place.
[10] Another inconsistency concerned the so-called “Niagara Falls incident”. Again, it was the appellant’s partner who claimed to have been present during the conversation. She testified that the appellant did not make the sexual comments attributed to him by the complainant. The trial judge resolved this apparent inconsistency by finding that the appellant’s partner was not present for the entire conversation. This, too, was a finding that was open to him on the evidence.
[11] The most serious inconsistency concerned the evidence of the complainant’s friend, A.R. A.R. testified that in grade two and grade seven, the complainant told her about inappropriate behaviour by the appellant. According to A.R., the complainant told her that the appellant would touch the complainant’s leg under the dinner table and then move his hand toward her vagina. In her testimony, the complainant denied that there were any such incidents and said that she told A.R. about some of the incidents as recounted in her testimony. The trial judge resolved that issue as follows:
Again, I do not find this difference to be particularly significant. [A.R.] testified they were in grade two when the subject was first raised and my impression from [A.R.’s] testimony was that she was not very sure of the particulars of what she was told by [the complainant] at that time.
[12] In our view, this was a finding the trial judge was entitled to make. A.R.’s testimony was vague as to what she was actually told. For example, she testified that when the complainant told her, in grade two, about the appellant’s conduct, it did not make an impression on her. When they discussed it again in grade seven, A.R. simply described the conversation as, “She told me pretty much the same thing she told me in second grade... Like she just told me what her dad did, like giving her looks and things like that?” Finally, at one point A.R. testified that she did not remember exactly what the complainant said. Given the vagueness and admitted uncertainties in A.R.’s recollection of the complainant’s disclosures, we see no error in the way in which the trial judge resolved the inconsistency in question. We would not give effect to this ground of appeal.
DISPOSITION
[13] Accordingly, we would dismiss the conviction appeal.
Signed: “M. Rosenberg J.A.”
“E. A. Cronk J.A.”
“Gloria Epstein J.A.”
RELEASED: “MR” November 10, 2010
[^1]: A charge of sexual assault was conditionally stayed.