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(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486. (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.

(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and

(b) justice system participants who are involved in the proceedings are protected.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. T.R.S., 2012 ONCA 105

DATE: 20120214

DOCKET: C51181

Doherty, Laskin JJ.A. and Brown R.S.J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Robert S.

Appellant

Lisa Loader, for the appellant

Alex Hrybinsky, for the respondent

Heard: February 13, 2012

On appeal from the convictions entered on October 4, 2000 by Justice Joseph M.W. Donohue of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1] We are satisfied that the fresh evidence proffered on appeal meets the cogency requirements set out in Palmer (criteria 2, 3, and 4). The evidence, a death certificate referable to the date of the appellant’s younger brother’s death, is determinative on that factual issue.

[2] The Crown’s case against the appellant was far from strong as evinced by the acquittal of the appellant on most of the charges. The fresh evidence impacts on the timing of one of the two events (the younger brother’s death) on which the main complainant based her chronology of the relevant events. The fresh evidence is inconsistent by a year with the complainant’s testimony as to the date of her younger brother’s death. Depending on how the complainant would react if confronted by the death certificate, a trier of fact could well conclude that on the complainant’s evidence the sexual assaults underlying the two convictions may have occurred while the appellant was still a juvenile and outside of the jurisdiction of the criminal courts.

[3] The evidence was available at trial and clearly, with the benefit of hindsight, should have been led. It is not suggested, however, that the failure to lead the evidence reflects any tactical decision made at trial. It is probably best seen as an oversight explained in part by the nature of the defence advanced at trial. The appellant adamantly denied that any of the sexual activity alleged against him occurred. The defence consisted of an all out attack on the credibility of the complainants rather than a challenge to the timing of any specific event. That attack was largely successful.

[4] Despite the failure to lead the evidence at trial, we are satisfied that the interests of justice require that the evidence be admitted on appeal.

[5] We stress, however, that the fresh evidence does not cast any doubt on whether the appellant committed the sexual assaults for which he was convicted. The fresh evidence does, however, raise a very real question as to whether he committed those assaults as an adult or a juvenile.

[6] A reasonable jury, considering the entirety of the record, could still conclude that the assaults occurred after the appellant turned 16. The Crown is, therefore, entitled to a new trial. The convictions are quashed and a new trial is ordered.