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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. R.H., 2013 ONCA 126

DATE: 20130301

DOCKET: C54582

Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.H.

Appellant

David E. Harris, for the appellant

Elise S. Nakelsky, for the respondent

Heard: February 19, 2013

On appeal from the convictions entered on September 13, 2011 by Justice Paul J. S. Kowalyshyn of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals from his conviction for sexual interference. The assault allegation depended upon the evidence of the young victim, who testified to a brief touching by the appellant, her uncle. The appellant testified, and denied the allegation. The grounds of appeal arise out of what Crown counsel on appeal properly concedes was improper cross-examination by the trial Crown, not Ms. Nakelsky. Following the hearing of the appeal, the court indicated that the appeal was allowed and an acquittal entered, with reasons to follow. These are those reasons.

[2] The improper cross-examination and the re-examination that followed it were as follows:

Q. So Mr., Mr. [H.], I’m going to suggest that, that you really have no explanation at all about where this allegation would come from?

A. No.

Q. Okay. Certainly from what your evidence is, it’s not like she’s confusing some innocent encounter that you had with her.

A. No.

Q. Doesn’t match up with anything that you can even recall remotely that would – that she might have crossed her wires on.

A. No.

Q. Okay. And I take it from your answers earlier that you, you felt quite close with [J.]

A. Very.

Q. Okay. And you’ve never had experience with her making up lies about people before.

A. I do not know [J.] to be a liar.

Q. I’m going to suggest Mr. [H.] that, you know, you’ve said you don’t know her to be a liar, it’s not even remotely consistent with something, some innocent contact that you’ve had with her, that the only explanation really is that what [J.] was describing is something that happened.

A. Please reword the question, I didn’t get that.

Q. I’m suggesting to you that [J.]’s not lying and it’s not – she hasn’t crossed her wires on some innocent contact that you had with her because you’ve said it’s not remotely like anything you’ve – contact you’ve had with her. That the only explanation is that what she’s described is true.

A. I do not know.

[Crown Counsel]: I don’t have any other questions, Your Honour.

THE COURT: Any...

[Defence Counsel]: I just have one question in re-examination.

RE-EXAMINATION BY [DEFENCE COUNSEL]:

Q. My friend asked you – the last question he asked you, which was almost a three-part question, but as I understand it he was asking you whether or not what [J.] – he, he said, what [J.] had told the police must be true, regarding your conduct. Did you understand that to be his question?

A. I understood that to be his question.

Q. Okay. And what’s your answer?

A. No.

Q. Thank you. [Emphasis Added]

[3] The cross-examination violated the well-known principle stated in cases going back to R. v. Markadonis, 1935 CanLII 44 (SCC), [1935] S.C.R. 657, that it is improper to ask an accused for his opinion of the veracity of another witness. The question is unfair and where, as here, that witness is the person making the central allegation against the accused, the question undermines the presumption of innocence. As the authors of McWilliams’ Canadian Criminal Evidence note at 27-23, the question also forces the accused to advocate the case when his role is to testify as a witness: see Mr. Justice S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds., McWilliams’ Canadian Criminal Evidence, loose-leaf, 4th ed. (Aurora, ON: Canada Law Book, 2009).

[4] In some cases it may be possible to say, as did this court in R. v. Daly (1992), 57 O.A.C. 70, that no substantial wrong was occasioned because the question does no more than point out the obvious; the stories of the accused and the complainant are diametrically opposed. In other cases, and in our view this is one of them, the trier of fact may use the accused’s inability to account for the complainant’s story to weigh against the credibility of the accused. The appellant in this case could not be called upon to give his opinion of whether the complainant was lying. It is not surprising that his answer to the confusing and improper question was equivocal.

[5] Regrettably, the trial judge, in reasons that are otherwise a careful and thorough review of the evidence and the applicable legal principles, used the appellant’s response to the improper question to find against him. The trial judge said the following in his reasons:

Now this of course does not end the matter. Notwithstanding that there is no onus on the accused to do anything in the case, the court did have the benefit of hearing directly from Mr. [H.] For all but the very end of his evidence, Mr. [H.] was very clear and concise. He unequivocally and categorically denied all of the allegations against him. He specifically denied that he sexually assaulted his niece in any way, that he pulled her pants down at any time, that he exposed his penis to her, that he rubbed his penis against her vagina, that he did anything to [J.] that could be misinterpreted as being sexual in any way. He also readily acknowledged that there were times that he would have been alone with [J.], but was steadfast in denying that anything inappropriate let alone anything sexually inappropriate had happened between them. In cross-examination, Mr. [H.] spoke of what had previously been a very positive relationship with his niece. He indicated that [J.] was never fearful of him. He had no explanation for [J.]'s story and even went so far as to say that he didn't know [J.] to be a liar. Had this been the conclusion of Mr. [H.]’s evidence, then arguably the court would have been left with a reasonable doubt based on the dicta in the Supreme Court of Canada decision R. v. W.D. However, it was not. The Crown concluded its cross-examination of Mr. [H.] with a somewhat convoluted question in which, in which Mr. [H.] was asked that if [J.] wasn’t lying and if there wasn’t some innocent contact between them which had been misinterpreted, then [J.] must have been describing something that actually happened between her and Mr. [H.] Mr. [H.] quite fairly asked that the question be reworded because he didn't understand it. The exchange between him and [Crown counsel] at page 62 of the transcript from July 25 reads as follows: [Transcript Omitted]

Mr. [H.]'s response of "I do not know" to the reworded question caused me considerable and immediate concern the moment it was uttered. I also noted the manner in which it was stated. Mr. [H.], for the first time during his evidence, presented as being unsure of the answer to give as if he knew that if he answered "yes" then he would certainly be inculpating himself. I also note that before Mr. [H.] gave that answer that he paused momentarily, which was somewhat different from his other responses to other questions.

Now it is clear that there can be no doubt that at the time that Mr. [H.] was asked the reworded question by [Crown counsel] that he understood it. Mr. [H.] confirmed as much in his response to a question asked by his lawyer, [defence counsel], in reply. On page 63, this is the question by [defence counsel] and the answer by Mr. [H.]: [Transcript Omitted]

I am mindful that Mr. [H.] went on to add that what [J.] had told the police was not true. [Defence counsel] asked him, "Okay. And what's your answer?" Mr. [H.] replied, "No". This was an entirely different answer than Mr. [H.] had given just seconds before. In my view, and notwithstanding the response given my – by Mr. [H.] to [defence counsel’s] question in reply, that horse was already out of the barn. If Mr. [H.] had not done the act complained of, then there could only be one answer to the question posed by [Crown counsel], a question which Mr. [H.] confirmed he understood. That answer is, and should have been, an, an emphatic "no". Instead, Mr. [H.] paused and answered that he didn't know. Well, certainly only Mr. [H.] could know the answer to this question. Accordingly, whatever doubt existed up until that point in the evidence was erased by Mr. [H.]'s answer to that question posed by [Crown counsel] and as a result, the court is left with no reasonable doubt and accordingly a conviction will register in relation to the count of sexual assault contrary to section 271. The other charge will be stayed. [Emphasis added].

[6] In her very helpful submissions, Ms. Nakelsky submits that the trial judge did not err in his use of the appellant’s evidence. She points out that during argument the trial judge showed that he was aware that there was no burden on “the accused person to explain why this set of circumstances may have happened or why this witness may be lying”. It is undoubtedly true that the trial judge was aware of this principle. Unfortunately, when he came to explain his reasons for disbelieving the appellant, it appears that the trial judge used as the decisive factor that the appellant was unable to explain why the complainant was lying.

[7] Ordinarily, the appropriate remedy would be to allow the appeal and order a new trial. However, in this case, a fair reading of the trial judge’s reasons is that he would have had a reasonable doubt, but for the appellant’s response to Crown counsel’s improper question. In particular, we note his statement at the very end of his reasons that “whatever doubt existed up until that point in the evidence was erased by Mr. [H.]’s answer to that question posed by [Crown counsel] and as a result, the court is left with no reasonable doubt”.

[8] Accordingly, as we indicated at the conclusion of argument, the appeal is allowed, the conviction set aside and an acquittal entered on the charge of sexual interference. The stay of proceedings on the charge of sexual assault is lifted, and an acquittal entered on that charge as well.

“M. Rosenberg J.A.”

“J.C. MacPherson J.A.”

“H.S. LaForme J.A.”