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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.S., 2014 ONCA 541

DATE: 20140710

DOCKET: C55226

Rosenberg, MacPherson and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.S.

Appellant

Mark Halfyard, for the appellant

Gillian Roberts, for the respondent

Heard: May 27, 2014

On appeal from the conviction entered on October 31, 2011 and the sentence imposed on February 23, 2012 by Justice Healey of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his conviction by Healey J. for various sexual offences. The complainant, the appellant’s stepdaughter, was approximately six years of age at the time of the offences and was eight years of age at the trial. The appellant and the complainant’s mother A.C. each had two children at the time they became involved in a relationship. The appellant has two children, the oldest D.S. being approximately 8 years of age at the time of the offences. These two children ordinarily lived with their mother but would visit the appellant and A.C. every two weeks. The disclosure leading to the charges began when the complainant told others that her stepbrother D.S. was sexually assaulting her. The complainant then gave a number of statements, implicating the appellant, that were the focus of the prosecution and form the main basis for the appeal.

[2] The appellant’s main submission was that the trial judge erred in admitting the statements when, at trial, the complainant refused to testify about any acts by the appellant. While the trial judge admitted four statements, the core of the prosecution case was in a videotaped statement that the complainant gave to the police on May 20, 2009 and the complainant’s testimony at the preliminary inquiry in which she adopted that statement, which was admitted under s. 715.1 of the Criminal Code. The complainant was cross-examined at the preliminary inquiry. The trial judge also admitted a statement made by the complainant the day before the preliminary inquiry to the investigating officer. While the officer was concerned that the complainant would retract her complaints, as she had on an earlier day, the complainant ended up confirming much of the May 20 statement. The officer did not audio or video tape that statement and the substance of the statement was as later recorded by the officer in her notes. In her reasons, the trial judge dealt with the issues again raised before this court.

[3] We are satisfied that the trial judge properly applied the law as laid down, in particular in R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043 and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. The most compelling feature in this case was that the complainant testified at the preliminary inquiry and that her testimony was properly admitted by the trial judge in accordance with Hawkins. The videotaped statement of May 20 became part of the complainant’s testimony at the preliminary inquiry and was properly admitted.

[4] We also see no error in the trial judge’s decision to admit the statement made to the police officer. The police officer explained why she did not audio or video tape the statement. The trial judge unequivocally accepted the officer’s explanation and her notes of the conversation. The officer’s evidence explained the failure to tape record the statement and provided a reliable version of the statement. Moreover, it was important that the statement be admitted to properly understand the basis for the testimony at the preliminary inquiry.

[5] The appellant submits that the trial judge erred in relying upon a portion of the complainant’s statement as corroborative of the reliability of the statement. The portion referred to is where the complainant described, in her own words, ejaculation by the appellant. The appellant concedes that this statement shows that the complainant was subjected to a sexual attack. He argues, however, that this part of the statement did not confirm the reliability of the statement to the extent that it identified the appellant. The appellant submits that it was possible that the alleged assault by the eight-year old step-brother could have been the source of this information. This is a highly unlikely proposition. But, in any event, as we have said, the admissibility of this statement turned on the preliminary inquiry transcript and there was therefore no need for other corroborative evidence to render the statement admissible.

[6] The appellant submits that the trial judge failed to adequately consider that because the complainant essentially refused to testify at the trial, defence counsel was unable to cross-examine the complainant in accordance with an earlier ruling permitting cross-examination related to the alleged sexual assault by the complainant’s 8 year old step-brother. The theory of the defence was that the step-brother and not the appellant had sexually assaulted the complainant. The appellant did not attempt to cross-examine the complainant on this issue at the preliminary inquiry and did not lead other evidence at trial from the complainant’s mother and grandmother that could have supported this theory. The appellant submits that the trial judge should have exercised her discretion to exclude the hearsay evidence on the basis that the prejudicial effect outweighed the probative value.

[7] The leading Canadian case on the evidentiary status of evidence from an unresponsive witness is R. v. Hart (1999), 1999 NSCA 45, 135 C.C.C. (3d) 377 (N.S. C.A.), which has been applied by this court in R. v. Cameron (2006), 2006 CanLII 16078 (ON CA), 208 C.C.C. (3d) 481 (Ont. C.A.) and R. v. Duong, 2007 ONCA 68. In R. v. Hart, Cromwell J.A. identified several factors for the trial judge to take into account:

(1) the reason for the unresponsiveness;

(2) the impact of the unresponsiveness; and

(3) the possibilities of ameliorative action.

[8] Those factors do not favour excluding the hearsay statements. The trial judge identified the reason for the complainant’s lack of response. The proceedings had lasted several years and the evidence shows that the complainant had been influenced by several people, especially her mother who was anxious to again live with the appellant. Her decision to no longer actively participate was a function of the proceedings. The impact of the unresponsiveness was limited. The complainant testified at the preliminary inquiry that she was sexually assaulted by the appellant and her step-brother. The nature of the assaults, as described by the complainant, were described in different ways. Finally, there were actions that could have been taken. Most importantly, the appellant could have led evidence from the mother and grandmother in an attempt to show that the step-brother had improper access to the complainant. That evidence was never led, even though the mother testified at the trial for the defence in respect of other matters. There is no basis for setting aside the convictions on this basis.

[9] The appellant submits that the trial judge erred in relying upon Detective Lamanna’s opinion about the complainant’s demeanour. Much of the objected to evidence was properly admitted to explain the complainant’s demeanour to assist in understanding the reliability of the complainant’s evidence. We have not been persuaded that the trial judge gave improper weight to this evidence or in any way delegated her decision about reliability to the Detective.

[10] The appellant submits that the trial judge erred in discounting the similarities between the allegations respecting the step-brother and the allegations made against the appellant. There is no merit to this submission. The trial judge was aware of the allegations and she gave complete reasons for explaining why she accepted the evidence that identified the appellant as the perpetrator.

[11] Finally, the appellant submits that the trial judge implicitly reversed the burden of proof by the way that she dealt with the appellant’s opportunity to commit the offences. The reasons do not support this submission. In her review of the evidence, the trial judge pointed out that the evidence from the complainant’s mother did not show that the appellant did not have an opportunity to commit the offence. This was an entirely fair summary of the evidence and did not reverse the burden of proof.

[12] Accordingly, the appeal is dismissed.

“M. Rosenberg J.A.”

“J.C. MacPherson J.A.”

“P. Lauwers J.A.”