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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.S., 2012 ONCA 403

DATE: 20120613

DOCKET: C52956

Gillese, Epstein and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.S.

Appellant

Richard Litkowski, for the appellant

Lisa Joyal, for the respondent

Heard: May 24, 2012

On appeal from the conviction entered on May 27, 2008 and the sentence imposed on July 9, 2008 by Justice Frank J.C. Newbould of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] Mr. C. S. appeals six convictions of various sexual offences he was alleged to have committed against the complainant J.L. in the period 1994 through 1997, when J.L. was between two and a half and almost four years of age. He was sentenced to two years’ imprisonment in addition to three years of pre-trial custody, followed by three years of probation.

[2] Despite the fact that the trial judge correctly instructed himself on the applicable law, we have concluded that in several ways he failed to properly apply that law to the facts of this case.

[3] The appellant testified and denied all the complainant's allegations. Applying the first two branches of the test under R. v. W. (D.), 1991 93 (SCC), [1991] 1 S. C. R. 742, to the appellant's evidence, the trial judge found that the appellant was not a credible witness. In coming to that conclusion, he relied very heavily on the fact that the appellant's denial of what the complainant had said he had done "consisted of one word answers to non-specific questions." This observation led the trial judge in turn to conclude that the appellant's denials were "rather taciturn and superficial," and therefore unworthy of belief.

[4] We have reviewed the evidence of the appellant, and we note first that many of the questions put to him were in fact quite specific and often invited one-word answers. Indeed, our view of the appellant's evidence in this case is the same view taken by Doherty J.A. of the appellant's evidence in R. v. R.C., 2008 ONCA 98, [2008] O. J. No. 480, at paras. 8 and 9.

[5] In R.C. and in this case the accused testified and answered the questions put to him. He was required to do no more. As Justice Doherty remarked in R.C., at para. 9:

[The appellant's] failure to offer detail not sought by the questions asked cannot provide a reasonable basis for disbelieving the appellant's evidence. Counsel examining the appellant in-chief may have chosen, for tactical reasons, to avoid detail, leaving it to the cross-examiner to extract details. Whatever the merits of that tactic, it cannot be used as a ground for disbelieving the evidence of the appellant who simply answered the questions put to him by his counsel.

[6] We are also of the view that the trial judge's rejection of the appellant's evidence was flawed by his misapprehension of certain material evidence. For example, the trial judge stated that he disbelieved the appellant's evidence that “J.L.’s mother never was the one to leave” (emphasis added) the apartment after the appellant and the mother fought. The appellant did not testify to that effect. He testified that he could not recall the complainant's mother’s leaving the apartment after the fights, but that in any event it was he who left the apartment most of the time.

[7] The trial judge also misapprehended the evidence relating to the complainant's allegation at trial that the appellant had touched or rubbed her vagina. The complainant made the allegation for the first time at trial, after earlier and unequivocally telling the police that the appellant had never touched her in this way and after testifying to the same effect at the preliminary inquiry. At trial, counsel for the appellant confronted the complainant about the contradictory evidence she had given at the preliminary inquiry. The exchange was as follows:

Q. Maybe I'll put it a different way to you. When you told the lady judge last time that [C.S.] didn't touch your vagina, were you telling the truth?

A. No, I wasn't.

Q. And why weren't you telling the truth?

A. I don't know.

[8] In the face of this testimony, the trial judge remarked that "[i]t is not clear from the transcript of the preliminary that [the complainant] was saying that [C.S.] had not touched her vagina.” This finding is plainly wrong.

[9] We need not address the numerous other arguments advanced on behalf of the appellant, with one exception. It was improper of the trial judge to ask the appellant if he knew of any reason why the complainant would make up the things she testified about.

[10] This court has held repeatedly that it is an error to call upon an accused to comment on the credibility of his or her accuser. See, for example, R. v. L.L., 2009 ONCA 413, [2009] O.J. No. 2029 (C.A.) at para. 15; R. v. Rose, 2001 24079 (ON CA), 53 O.R. (3d) 417, at para. 27. As Simmons J.A. noted in L.L., at para. 16, such a question creates a serious risk of shifting the burden of proof to the accused instead of focusing on the central issue of whether the Crown has proved the case against the accused beyond a reasonable doubt.

[11] The determination of whether the Crown had met its burden in this case rested in the trial judge's findings of credibility, a difficult task, particularly in cases such as this. When disbelief is founded on the types of errors we have identified, including misapprehension of the evidence, a miscarriage of justice may take place if the conviction is allowed to stand.

[12] For these reasons, the appeal is allowed and a new trial ordered. We note, however, that the appellant has served all of the custodial term of his sentence and most of the ensuing three-year probationary term. It may well be that the Crown in the exercise of its discretion will determine that in this case further proceedings are not in the best interests of justice.

“E. E. Gillese J.A.”

“G.J. Epstein J.A.”

“E. Ducharme J.A.”```