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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. M.B., 2010 ONCA 846

DATE: 20101209

DOCKET: C50391

COURT OF APPEAL FOR ONTARIO

Laskin, Goudge and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. B.

Appellant

Catriona Verner, for the appellant

John Pearson, for the respondent

Heard: December 7, 2010

On appeal from the conviction entered on January 15, 2008, by Justice Robert A. Clark sitting with a jury and from the sentence imposed on August 16, 2008, by Justice Robert A. Clark and from the conviction entered on June 8, 2008, by Justice Nancy J. Spies of the Superior Court of Justice:

By The Court:

[1] The appellant appeals his convictions by a jury for sexual interference and sexual assault in relation to each of his two nieces. He also appeals his sentence of six years imprisonment less credit for one and a half years for pre-trial detention. As well, he appeals his subsequent conviction by judge alone for sexually assaulting and interfering with his nephew, for which he received a further three years imprisonment. He has served two years and four months of his global sentence of nine years.

[2] We have concluded that both conviction appeals must be allowed and new trials ordered. In the circumstances, we propose to give our decision now with brief reasons. Fuller reasons will follow.

[3] In his appeal from conviction for the offences involving his nieces, the appellant raises three grounds that have merit.

[4] First, the appellant says that there was sufficient evidence – both direct and circumstantial – of the opportunity for innocent collusion between the two nieces (who were the only Crown witnesses) to require that the jury be cautioned about this in assessing the credibility of each of them. Recognizing that the trial judge was not asked to give such a caution, we nonetheless agree with the appellant's submission. As the trial judge recognized, aspects of their evidence, particularly the identical but unusual language in which their complaints were made, give rise to this concern.

[5] Second, the appellant argues that a caution was warranted concerning the specific frailties of the evidence of each complainant beyond the generic caution appropriate for youthful witnesses generally. Again we agree. As the trial judge made clear in his fact finding at the time of sentencing, there were a number of troubling aspects to the evidence of the complainants. In our view, these were sufficient to warrant such a caution.

[6] Finally, and perhaps most importantly, the appellant submits that the Crown's address was so inflammatory that taken together with the other two errors, it deprived the appellant of a fair trial. We agree with this submission. We recognize that the appellant did not ask for a mistrial because of the Crown's closing and likely decided not to do so for tactical reasons. We also recognize that in his charge to the jury, the trial judge went a long way to try to undo the damage caused by the Crown's closing.

[7] However, the emotional rhetoric in the Crown's closing was very hard to completely balance in an instruction. Moreover, there was one particularly troubling aspect of the Crown's closing that the trial judge did not deal with in his charge: the Crown's inflammatory comment to the jury suggesting the complainants had no motive for fabricating their allegations. In our view, to correct this comment a caution such as that outlined in R. v. L.(L.), 2009 ONCA 413, 2009 244 C.C.C. (3d) 149 (Ont. C.A.) was necessary. The trial judge did not have the benefit of this court's reasons in that case. Suffice it to say that the Crown's closing in this case was at least as inflammatory and in many of the same ways as that in L.(L.).

[8] Taking these errors together we conclude that the appellant did not receive the fair trial to which he was entitled. We would set aside the convictions and order a new trial.

[9] As to the convictions for the offences involving his nephew, the Crown fairly acknowledges that these convictions cannot stand because of a legal error made by the trial judge. The trial judge had allowed as similar fact the evidence of the two nieces. That she was entitled to do. However, in assessing the strength of that evidence, she held that she was bound by the jury's verdict in the prior case. That holding was legally wrong because the principles of issue estoppel and res judicata do not apply in criminal law. See R. v. Mahalingan, 2008 SCC 63, 2008 237 C.C.C. (3d) 417 SCC paras. 56-59.

[10] These convictions must also be set aside and a new trial ordered.

RELEASED: DEC 09 2010 ("S.T.G.")

"J. I. Laskin J.A."

"S. T. Goudge J.A."

"Gloria Epstein J.A."