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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Barua, 2014 ONCA 34

DATE: 20140117

DOCKET: C55805

Doherty, Strathy and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kamal Barua

Appellant

Erika Chozik, for the appellant

Michael Medeiros, for the respondent

Heard: January 8, 2014

On appeal from the convictions entered by a jury presided over by Justice Michael G. Quigley of the Superior Court of Justice on March 23, 2012 and on appeal from the sentence imposed on July 23, 2012.

By the Court:

[1] The appellant was convicted by a jury of sexual assault and sexual interference. The trial judge stayed the sexual assault charge and imposed a 10-month sentence on the sexual interference charge. The appellant appeals conviction and sentence. We are satisfied that the appeals should be dismissed.

[2] The complainant, a young boy of 10 years of age (eight at the time of the alleged offence), testified that the appellant, the husband of the woman who babysat the complainant, sexually assaulted him while the two were sleeping on a mattress in the bedroom. The complainant alleged that the appellant pulled down his pants, kissed him, touched and licked his penis, and “humped” him. According to the complainant, the assault occurred while the appellant’s wife and young son were asleep nearby on a bed. The complainant testified that he struggled during the assault and that the noise awoke the appellant’s wife who spoke to him. She did not testify at trial. The complainant told his mother about the assault when she came to pick him up the next day.

[3] The appellant testified and denied that he assaulted the complainant. The defence claimed that the allegation had been fabricated by the complainant’s mother for reasons which need not be detailed here. It was the position of the defence that the appellant’s testimony, the evidence that the complainant’s mother had a motive to fabricate the allegation, and the very real problems with the reliability of the complainant’s evidence, taken in combination, should leave the jury with at least a reasonable doubt.

the conviction appeal

(a) The Reasonableness of the Verdicts

[4] Counsel for the appellant advanced five grounds on the conviction appeal. We called on the Crown on two of those grounds. These reasons will address those two grounds and the appellant’s submission that the verdicts were unreasonable.

[5] Counsel for the appellant contends that the convictions were based almost exclusively on the complainant’s evidence. She submits that, on any reasonable view, the complainant’s evidence was rife with inconsistencies and self-contradictions, incomprehensible in many respects, and nonsensical in others. To make her point, counsel referred the court to one answer given by the complainant which suggests that he had difficulty distinguishing dreams from reality.

[6] This court’s power to review the reasonableness of a verdict extends to jury verdicts even where they are based on credibility assessments. This court must, however, conduct its reasonableness assessment bearing in mind the significant advantage enjoyed by the jury when it comes to assessing the credibility of witnesses.

[7] The complainant’s statement to the police was admitted pursuant to s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46. A relatively brief examination in-chief and a lengthy cross-examination followed. The complainant testified for two days. No doubt, the complainant said different things at different times. Also, as noted by the trial judge, some of the complainant’s answers were difficult to understand.

[8] A review of the entirety of the evidence, however, shows that the core of the complainant’s allegation against the appellant remained largely intact. We cannot say that no reasonable jury, properly instructed, could have convicted the appellant based on the evidence of the complainant.

[9] In rejecting the claim that the verdicts are unreasonable, we make two observations about the evidence. First, it was common ground that the appellant lay down on the mattress where the complainant, a young boy of eight years of age, was already asleep. Apart from the fact that the appellant was married to the person babysitting the complainant, there was no connection between the two. There was also apparently an empty couch nearby. According to the complainant, he eventually took refuge on that couch. Second, the complainant made an allegation of sexual misconduct the very next day when his mother arrived to pick him up at the appellant’s home. Those two facts provide part of the context in which the jury had to assess the complainant’s evidence. The verdicts survive the reasonableness analysis.

(b) The Instruction on the Evidentiary Use of the Complainant’s Alleged Statement to his Mother

[10] The complainant’s mother testified on cross-examination that, about a year after the alleged assault and just before the preliminary inquiry, the complainant told her about additional sexual assaults perpetrated against him by the appellant. These assaults were significantly more serious than those alleged in the initial disclosure. According to the mother, the complainant also told her that the appellant had showed him pornographic movies. The evidence is not clear as to when these incidents were alleged to have occurred.

[11] The complainant was not cross-examined about this alleged further disclosure made to his mother. He was cross-examined in more general terms about any additional disclosures he made after his initial disclosure. As we understand his evidence, he did not acknowledge making any additional disclosures.

[12] The defence also called a friend of the complainant’s mother to testify about the alleged further disclosure. According to the mother, this friend had been present during that disclosure. The friend testified that the complainant told her about a sexual assault. According to the friend, however, this conversation did not take place in the presence of the complainant’s mother. Nor, according to the friend, did the complainant provide the details referred to in the evidence of the complainant’s mother.

[13] The defence argued at trial that the complainant had not made the further disclosure statement to his mother and that this part of the mother’s evidence was fabricated. The defence argued that this fabrication supported the defence position that the initial allegation was fabricated by the complainant’s mother.

[14] It is common ground that the alleged statement by the complainant to his mother was not admissible for the truth of its contents. The trial judge made this clear to the jury both by way of a mid-trial instruction and in his final instructions.

[15] Counsel for the appellant submits, however, that the alleged further disclosure statement was admissible, depending on the view the jury took of that statement, either to impugn the credibility of the complainant or to support the defence position that the mother had fabricated the allegation. Counsel submits that, if the jury believed the mother’s testimony that the complainant provided the further disclosure, that statement by the complainant was inconsistent with his trial testimony and, therefore, could be used to impeach his credibility. Counsel also submits that, if the jury was not satisfied that the further disclosure statement was made, that finding would significantly undermine the mother’s credibility and buttress the defence position that the mother had fabricated the initial allegation. Counsel submits that the trial judge erroneously told the jury that the alleged further disclosure statement could not assist in assessing the evidence of either the complainant or his mother.

[16] The trial judge told the jury that the mother’s evidence of the additional disclosure made by the complainant could not be used to assess the complainant’s evidence. Tested against the abstract rules of evidence, that instruction is at least incomplete and arguably wrong. It could be said that the evidence of the complainant’s further disclosure was inconsistent with his testimonial version of the assault. We stress, however, that the nature, extent, and effect of the inconsistency are very difficult to discern on this record, especially in the absence of any cross-examination of the complainant on the alleged statement.

[17] Whether the instruction caused any prejudice to the appellant is not, however, tested solely by reference to the rules of evidence without regard to the circumstances of the particular case. The propriety of the instruction must be tested bearing in mind the positions advanced by the parties at the trial and the evidence adduced by the parties.

[18] It was not part of the defence position that the complainant had made the alleged additional disclosure to his mother. This is evident from the absence of any cross-examination of the complainant on that alleged statement. Further, any suggestion by the defence that the complainant had actually made the further disclosure would significantly undercut the defence’s central position that the mother had fabricated the initial allegation, as evinced by her later fabrication of a much more serious version of the allegation.

[19] The instruction now urged would not have assisted the defence as advanced at trial. If the jury had been instructed that it could use the statement to assess the complainant’s credibility, the defence ran the risk that the jury would find that the further disclosure statement was made, thereby undermining the defence’s allegations against the mother. Also, given the absence of any cross-examination of the complainant, it is doubtful that the jury would have found the statement of much help in assessing the complainant’s credibility.

[20] At trial, the defence took the position that the jury should be told that the alleged statement to the complainant’s mother could not be considered by the jury in assessing the complainant’s credibility. This position, accepted by the trial judge, reflects, in our view, an appreciation of the risks to the defence position, should the jury find that the statement was made. The defence agreed to an instruction which would eliminate that risk. In those circumstances, the trial judge’s instruction was appropriate and certainly did not prejudice the defence.

[21] The trial judge’s instructions as to how the jury could use the prior disclosure statements when assessing the credibility of the mother’s evidence are somewhat unclear. At one point in the instructions, the trial judge told the jury that the evidence could not be used to contradict or impeach the credibility of the complainant’s mother. This instruction was, however, given in the context of an instruction that the evidence of the complainant’s alleged additional disclosure to his mother was not admissible for the truth of its contents. As we understand the instruction, the trial judge was telling the jury that it could not, in assessing the credibility of the complainant’s mother, do so on the basis that the allegations made in the alleged further disclosure were true. This instruction is correct, although, perhaps, not particularly helpful. In fairness, however, it should be pointed out that the trial judge specifically vetted this part of his instruction with counsel. Both the Crown and the defence were content with the instruction.

[22] Apart from the trial judge’s references to the alleged additional disclosure made by the complainant as part of his instructions on out-of-court statements, the trial judge also dealt with that evidence in the context of the defence theory. He reminded the jury of the evidence of the complainant’s mother and the conflicting evidence of her friend. The trial judge also related that part of the evidence directly to the defence position, telling the jury:

She [defence counsel] indicated to the court that those allegations were disclosed by N. [the complainant] in front of [the mother’s friend] which [the mother’s friend] denies, she says … N.’s mother clearly had a motive, according to the defence, to at the very least embroider [sic] what N. had indicated to her, if not engage in outright fabrication.

[23] We are satisfied that the jury understood the potential relevance of the evidence of the complainant’s alleged further disclosure to the credibility of the mother’s evidence. The connection was simple and straightforward and put to the jury as part of the defence position. This positioning made sense, as the value of the evidence to the defence did not lie in any inconsistency with anything else the mother had said, but rather in the claim, supported by the friend’s evidence, that the mother had fabricated her evidence that her son had made a further disclosure to her.

(c) The Instruction as to the Manner in which the Jury Should Approach the Evidence of the Complainant

[24] The appellant submitted that the trial judge’s instruction, read as a whole, conveyed to the jury the message that it should test the credibility and the reliability of the complainant’s evidence against a lower standard than was to be applied to the assessment of the credibility and the reliability of adult witnesses. We cannot agree that the instruction had that effect.

[25] The complainant was 10 years old when he testified. There was also one other child witness. The trial judge was obliged to tell the jury that it must take into account the age of the complainant and the other child witness in assessing the evidence of those witnesses. Factors which may have a decisive effect on the reliability of the evidence of an adult witness—for example, material inconsistencies in details as to time and place—may play a significantly lesser role in assessing the reliability of the evidence of a child witness. That is not to say that the child’s evidence is subject to a less rigorous standard of assessment before it can be accepted in a criminal trial. Rather, it is to say that the assessment of the credibility and the reliability of any witness is to be tailored to the individual characteristics of the witness. Where the witness is a young child, age is one of those individual characteristics: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at pp. 133-34.

[26] The trial judge dealt with the assessment of evidence of child witnesses at some length in his initial charge. He directed the jury that it had to bear in mind the age of the witness in assessing the reliability of the evidence. He told the jury that child witnesses may not have the same ability as adults to recall details or describe events fully. Consequently, inconsistencies in respect of such matters may not be as important in assessing the evidence of a child witness. The trial judge, however, told the jury that his instruction was not intended to lower the standard to be applied in assessing the evidence of a child:

… This does not mean, however, that we should subject the testimony of children to a lower level of scrutiny or reliability than we do adults. It would be inappropriate to inadvertently relax the proper level of scrutiny to which the evidence of children should be subjected.

[27] The trial judge concluded this part of his initial instruction with the admonition: “Use your good common sense.”

[28] In response to an objection by counsel for the appellant, the trial judge recharged the jury and reiterated his initial instruction that the same standard must be applied to assessing the evidence of child witnesses as applied to all other witnesses. The trial judge specifically told the jury that he had not intended to suggest that a different standard applied when he referred to the complainant’s apparent confusion on the witness stand.

[29] Finally, in response to a jury’s request to see the complainant’s s. 715.1 videotaped statement, the trial judge reminded the jury of the approach it should take in assessing the entirety of the complainant’s evidence:

You do not apply a different standard when you evaluate the evidence of N. [the complainant] relative to the standard that is applied to an adult witness. It is true that you must assess his evidence taking into account of the fact that he is a child, but you must not subject his evidence to a lower level of scrutiny because he is a child.

[30] The trial judge not only repeatedly and correctly instructed the jury as to how it should approach the evidence of the complainant because he was a child, he also reviewed the complainant’s evidence in some detail. In that review, he focused on several features of the evidence relied on by the defence at trial and on appeal to demonstrate the unreliability of the complainant’s evidence.

[31] The jury was properly equipped to consider the evidence of the complainant. It was ultimately for the jury to determine whether his evidence was sufficiently reliable.

the sentence appeal

[32] Counsel focused on a single argument in support of the sentence appeal in her oral submissions. She contended that the trial judge failed to give adequate weight to the appellant’s personal circumstances when fixing a sentence of 10 months. Counsel stresses the significant adverse effects of the charges and the subsequent conviction on the appellant’s health and his family life. The appellant has been required to live apart from his family as a result of these charges.

[33] The trial judge gave detailed reasons for sentence. He summarized the pertinent medical evidence and other circumstances personal to the appellant. He was clearly alive to the various mitigating features presented on behalf of the appellant.

[34] The trial judge correctly concluded that a sexual assault on a young victim in the circumstances of this case would normally attract a medium to high range reformatory sentence even for a first offender. The trial judge proceeded to impose a 10-month sentence.

[35] The length of the sentence imposed reflects the trial judge’s consideration of the appellant’s personal circumstances and a mitigation of what would otherwise be an appropriate sentence to reflect those personal circumstances. We see no error in principle in the sentence imposed. There is no suggestion that it is manifestly excessive. We cannot interfere with the sentence imposed by the trial judge.

[36] The appeal is dismissed.

RELEASED: “DD” “JAN 17 2014”

“Doherty J.A.”

“G.R. Strathy J.A.”

“G. Pardu J.A.”