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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. J.E.T., 2013 ONCA 492

DATE: 20130723

DOCKET: M42495 (C53171)

Laskin, Gillese and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.E.T.

Appellant

David E. Harris, for the appellant

Kim Crosbie, for the respondent

Heard: July 17, 2013

[1] By the Court:

[2] The appellant was convicted by a jury in October 2010 on eight counts relating to sexual offences and assaults committed against six sisters some forty years earlier. He was sentenced to a total of ten years’ imprisonment.

[3] He died on March 23, 2013, while on bail pending appeal. In the normal course, this appeal becomes moot and should abate as a result of the appellant’s death. However, his widow, the applicant, seeks to continue the appeal, following the procedure outlined by the Supreme Court of Canada in R. v. Smith (2004), 2004 SCC 14, 181 C.C.C. (3d) 225.

[4] Under this procedure, there is a discretion to permit the appeal to continue where special circumstances make it “in the interests of justice to do so”. This discretion is to be “sparingly exercised” in “rare and exceptional cases”.

[5] In Smith at para. 50, Binnie J. referred to a list of non-exhaustive factors that may be present in any particular case, which the court may take into account in the exercise of its discretion. The key factor in the present case relates to the primary issue raised on appeal, namely, whether it is of “general public importance, particularly if it is otherwise evasive of appellate review”.

[6] In this regard, the moving party focuses on the ground of appeal related to the expert evidence offered by a Crown witness on the memories of victims of childhood sexual abuse and matters of “recovered memory” and “repressed memory”. He asserts that the trial judge improperly admitted that expert evidence. If the appeal proceeds, the moving party will seek leave to adduce fresh evidence from an expert who will testify that, based on the current state of research, the factual underpinnings for the Crown’s expert opinion were incorrect.

[7] The moving party argues that this issue is of broad public importance and that it presents this Court with an opportunity to contribute to the law on recovered memory. He also says that the impugned expert evidence calls into question the integrity of the process by which the appellant was convicted.

[8] Turning to the factors identified in Smith, we are prepared to assume that if leave is granted the appeal will proceed in a proper adversarial context and that the grounds of appeal, taken together, have some merit. We cannot, however, conclude that there are special circumstances that transcend the death of the appellant. While the issue of “repressed” or “recovered” memory is an important one, it was not the sole focus of the evidence of the Crown’s expert. Moreover, the issue cannot be described as one that is “evasive” of appellate review. It has been the subject of discussion in a number of cases – see for example: R. v. Markman, [2002] O.J. No. 4250 (C.A.); R. v. B.M. (1998), 1998 13326 (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.). As the respondent’s counsel puts it, the issue has arisen in the past and will again in the future.

[9] That brings into play the fourth factor mentioned in Smith, namely, whether the nature of the order that this Court could make justifies the expenditure of limited judicial resources to resolve a moot appeal. If the applicant succeeds on the appeal, the court would most likely order a new trial – something that is not possible in the circumstances of this case: see R. v. Niemi, [1998] O.J. No. 460 (C.A.), at para. 3. In this case, the defence did not adduce expert evidence on the issue of false memories and, as the Crown submits, the issue was not litigated at trial in the manner in which it is now being argued. An academic inquiry into the issue, at the appellate level, without an underlying lis, would be incomplete, would not serve the interests of justice in this particular case and would not justify the substantial expenditure of limited judicial and court resources.

[10] We do not overlook another aspect of the special circumstances inquiry, that is, the consequences for the applicant’s family. However, even if the appeal were to be allowed, it could not be construed as an exoneration of the deceased. Moreover, two of the convictions were based on the evidence of a witness who had always remembered the sexual assaults at issue – that is, convictions that were not founded on repressed or recovered memory.

[11] In sum, this is not one of those exceptional cases in which leave to continue the appeal should be granted. The motion is dismissed and the appeal is dismissed as abated.

RELEASED: “JUL 23 2013” “John Laskin J.A.”

“JL” “E.E. Gillese J.A.”

“G.R. Strathy J.A.”

[12]