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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. H.B., 2014 ONCA 334

DATE: 20140428

DOCKET: M42516 C56977

Lauwers J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

H. B.

Applicant/Appellant

Raymond Boggs, for the applicant

Frank Au, on July 25, 2013, and Elise Nakelsky on April 22, 2014, for the respondent

Heard: July 25, 2013, and April 22, 2014

Application for release pending the appeal from convictions entered on November 29, 2012 and sentence imposed on March 18, 2013 by Justice Edward Gareau of the Superior Court of Justice, sitting without a jury.

Lauwers J.A.:

[1] The applicant was convicted by Gareau J. of three counts of long term historical sexual assault on two of his daughters when they were young, one count involving rape. He was sentenced to eight years’ imprisonment. The applicant has appealed conviction and sentence. He seeks bail pending appeal.

[2] This is the return of a motion for bail pending appeal, which was adjourned by me on July 26, 2013 to permit the appellant to obtain a medical report and prepare better application materials.

The Governing Principles on Bail Pending Appeal

[3] Watt J.A. laid out the governing principles in R. v. Manasseri, 2013 ONCA 647, [2013] O.J. No. 6177, at paras 37-38, 40-43:

Under section 679(3) of the Criminal Code, an applicant who seeks release pending the determination of an appeal from conviction must establish to the satisfaction of the chambers judge:

i. that the appeal is not frivolous;

ii. that the applicant will surrender into custody in accordance with the terms of the release order; and

iii. that the applicant’s detention is not necessary in the public interest.

An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.

The public interest criterion in section 679(3)(c) requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other: R. v. Farinacci (1993), 1993 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

Public confidence in the administration of justice requires that judgments be enforced. The public interest may thus require that a person convicted of a very serious offence, like second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal: Farinacci, at p. 48.

But public confidence in the administration of justice also requires that judgments be reviewed, and that errors, if any, be corrected, especially where an appellant’s liberty is at state [sic]: Farinacci, at p. 48.

The public interest ground assumes a place of greater prominence in cases in which an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: R. v. Baltovich (2000), 2000 5680 (ON CA), 144 C.C.C. (3d) 233 (Ont. C.A. – Ch’rs), at para. 19; R. v. Demyen (1975), 1975 1338 (SK CA), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326. As a result, release of an applicant pending appeal of a murder conviction is rare: Baltovich, at para. 20. But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release: Baltovich, at para. 20; R. v. Parsons (1994), 1994 9754 (NL CA), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187.

[4] I am satisfied that the applicant would surrender himself into custody in accordance with the terms of any bail order. I now turn to the other two issues under s. 679 of the Criminal Code: whether the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if the applicant were detained in custody; and whether his detention is not necessary in the public interest.

The Merits of the Appeal

[5] The conviction appeal rests on two grounds. The applicant argues that he did not receive a fair trial, first, because he is hard of hearing and did not hear the proceeding, and second, because the two complainants colluded with each other.

The Applicant’s Hearing Problem

[6] Counsel filed fresh evidence consisting of an audiologist’s report. The report shows that: “in quiet conditions with no competing noise [the applicant] can follow approximately 50% of what is being said if it is sufficiently loud.” In his supplementary affidavit the applicant states: “I could not hear the proceedings at trial and I stated under oath that I could not hear much of the testimony.”

[7] The applicant points to three significant instances, and a group of more minor instances, in which the applicant misheard the proceedings. Counsel argues that these examples show that the applicant was unable to participate fully in his own trial.

[8] First, counsel cited an example from the applicant’s cross-examination in which the Crown referred to the evidence-in-chief of one of the complainants. The applicant responded that he did not hear half of it because she was speaking so softly.

[9] Second, the applicant points to the exchange in his cross-examination reproduced below. The applicant denied sexually abusing his children throughout. In the closing moments of the Crown’s cross-examination, however, the following exchange occurred:

Q. Now, here we are. It’s 2012, Mr. [B.], right? And I suggest to you you’re facing something in court that you never thought would come to light. You never believed that [N.] and [C.] would go to the police and talk about what you did to them.

A. Correct.

Q. This is a dirty, dark secret in your house, isn’t it?

A. Yeah.

Q. Yes. He said, “Yes.” It’s time to apologize to them. You know that’s what they want, don’t you?

A. I want to apologize to my children.

Q. That’s all they wanted all these years.

A. I love them very much. I’ll do all I can in my life because I don’t have very much left in my life, I’m all injured and close to 80 years old, and I want to apologize to my children and I love them very much. And I want to get back family before I leave this world. Sorry. I am very, very sorry to [C.] and [N.].

[10] Counsel submits that the applicant did not understand the Crown’s question, and did not understand that he was effectively confessing. Counsel points to the applicant’s supplementary affidavit in which he states:

I have a hard time hearing and misunderstood the question I was being asked on the stand. I did not confess to sexually assaulting my daughters. While being cross-examined, I was stating that I was sorry for not being around my children enough. I did not sexually assault anyone.

[11] Third, counsel suggests that the applicant did not hear the sentence being imposed.

[12] Apart from these three significant instances, the applicant points to several occasions in the transcript where it appeared that he did not hear what was said.

[13] I reject the applicant’s submissions, for the following reasons. First, the audiologist’s report is vague and generic. People with hearing problems appear frequently in our courts and every effort is made to accommodate them and to ensure that they understand what is going on. This is the responsibility of trial counsel. The applicant did not draw my attention to any indication that trial counsel objected on the record or advised the court that his client was not able to follow the proceedings. There is no affidavit from trial counsel describing any problems in communication or comprehension on the part of the appellant.

[14] Second, I am unable to conclude that the applicant did not understand the Crown’s question at the end of his cross-examination because he did not hear it. The Crown’s question was a plain invitation and the answer was responsive. Although the trial judge relied on the exchange, he did not treat it as a confession. Rather, he based his decision on the totality of the evidence that was before him.

[15] Third, it is evident from the applicant’s responses to questions that he heard and understood what was being asked. When the Crown referred to a complainant’s evidence, the applicant responded that he had not heard it; the Crown then put the evidence of the complainant to the applicant, who had a full opportunity to respond.

[16] This was also true for the collection of instances in which the applicant as witness did not initially hear a question. The question was restated and the applicant provided a responsive answer, showing that he understood the question. It is not unusual for witnesses in trials to tell counsel that they have not heard a question or that they have not understood it, and ask that a question be repeated. There is little, if any, merit in this ground of appeal.

Possible Collusion Between the Complainants

[17] The applicant submits that there was collusion between the two complainants.

[18] In particular, the applicant alleges that the complainants travelled and shared accommodation to and from the preliminary hearing and the trial, an allegation that the Crown disputes. They are sisters and admitted to talking with each other about the incidents of abuse over the years. They were each provided, inadvertently, with the other’s preliminary hearing testimony transcripts by the Crown’s office.

[19] The trial judge recognized the inadvertent disclosure by the Crown of the preliminary hearing evidence but dismissed the appellant’s motion for a stay.

[20] The motion was brought under s. 7 and s. 11(d) of the Canadian Charter of Rights and Freedoms. The trial judge noted that the court had the power to stay proceedings but only, consistent with the Supreme Court’s decision in R. v. Jewitt (1985), 12 C.C.C. (3d), in the “clearest of cases”. He pointed to other cases supporting the same principle in the Supreme Court of Canada and in the Court of Appeal for Ontario. The trial judge referred to the observation of Hill J. in R. v. Kim, [2008] O.J. No. 198, at para. 96, that in cases of family sexual abuse the discussion of the abuse among family members is understandable. There is, in my view, no error in the trial judge’s approach to the motion for a stay.

[21] The trial judge noted, in his reasons for dismissing the motion for a stay:

This court had the benefit of hearing the evidence of [N.R.] and [C.B.] in-chief and during cross-examination. Their evidence did not establish that [N.R.] altered or adopted her evidence from that given at the preliminary inquiry or to that given at the trial as a result of reading the transcript of the evidence of her sister, [C.B.], given at the preliminary inquiry. The same can be said for the evidence of [C.B.].

In my view, the inadvertent disclosure of another witness’ evidence to a witness is a matter that the trier of fact can consider when determining how much weight will be given to that witness’ evidence. Counsel for the accused had the opportunity to cross-examine both [N.R.] and [C.B.] on this matter, and I agree with the Crown’s observation in her factum that, ‘It is significant that nowhere in the cross-examination of [N.R.] or [C.B.] did counsel show one sliver of impact on their evidence.’

[22] Counsel refers to a number of instances in the transcript which he submits demonstrate collusion. I observe that this is not a case in which two witnesses are giving evidence about a common encounter with the accused. I do not find the instances of alleged collusion to be persuasive. One would expect, for example, the complainants’ descriptions of the house in which the family lived to be consistent. The only instance that is troublesome concerns assaults that occurred in a truck, about which the descriptions seem unusually similar. This is not, however, enough to raise an arguable case that the appeal on this ground has merit.

[23] The evidence at trial did not evolve in a manner that showed the alleged collusion between the complainants. Before me, counsel was unable to point to any shifts in the evidence of either complainant between the preliminary hearing and the trial. The applicant makes no allegation of ineffective assistance of counsel.

[24] The trail judge noted in his reasons for conviction that:

In cross-examination, it was not shown that their evidence was changed at trial from that given in prior statements to police or at the preliminary inquiry. Quite simply, I cannot find that [N.] or [C.’s] evidence was altered in any way by the reading of the transcripts from the preliminary inquiry.

He added:

I do not find the evidence of [N.] and [C.] so similar in nature as to events that occurred to cause me to conclude that the evidence has been rehearsed, orchestrated, or cooked up between them. There are significant dissimilarities in the evidence of [N.] and [C.] on substantial points surrounding the events.

[25] There is little, if any, merit in this ground of appeal.

The Public Interest Ground

[26] In my view, the convictions constitute serious crimes against the person. The grounds for the conviction appeal are arguable but weak. In this case the public interest balance required by Farinacci favours continued enforcement of the sentence, not judicial interim release. The appeal can be scheduled quickly on an expedited basis. Cross-examination on the fresh evidence, if required, should not delay the appeal.

[27] The application is dismissed.

Released: April 28, 2014 “P. Lauwers J.A.”