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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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. E.H., 2014 ONCA 622

DATE: 20140904

DOCKET: C54595

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E.H.

Appellant

Robert C. Sheppard, for the appellant

Michael Perlin, for the respondent

Heard and released orally: August 27, 2014

On appeal from the conviction entered on February 17, 2011 by Justice T. David Little of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant was convicted of sexual touching and invitation to sexual touching after a jury trial. He appeals his conviction on two grounds. Each ground relates to the trial judge’s final instructions to the jury.

[2] For all practical purposes, this was a two witness case.

[3] The complainant was four years of age at the time of the conduct alleged to constitute the offences of which the appellant was convicted. Her evidence at trial consisted of her videotaped complaint admitted under s. 715.1 of the Criminal Code, and her testimony at trial given by closed circuit television under s. 486.2. The essence of her complaint was that on several occasions while they were sitting on a couch watching television, the appellant took her hand and placed it on his penis. After a brief period, the appellant removed her hand from where he had placed it and told her that he loved her.

[4] The appellant testified at trial. He said that on one occasion, the complainant, on her own initiative, put her hand down the front of his shorts and touched his penis. He was not wearing underwear. The appellant said he panicked, moved the complainant away from him and went upstairs. He returned wearing a pair of jeans, a belt and his top.

[5] The first ground of appeal attacks the adequacy of the trial judge’s instructions on the burden and standard of proof. More specifically, the complaint is that the trial judge failed to give an express W.D. instruction, in terms, or by language that amounted to its functional equivalent.

[6] During the pre-charge conference, the trial judge indicated that he proposed to include a W.D. instruction in his charge. Unfortunately, he failed to do so. Our task is to determine whether the final instructions, viewed as a whole, would have left the jury under any misapprehension about the applicable burden and standard of proof: R. v. Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 7-9.

[7] The purpose of a W.D. instruction is to ensure that the jury does not regard its decision as involving an “either/or” choice, rather that the jurors understand that they must decide, based on the whole of the evidence, whether they are left with a reasonable doubt about an accused’s guilt: Y. (C.L.), at para. 6.

[8] For several reasons, we would not give effect to this ground of appeal.

[9] First, we note that the W.D. formula is not some magic incantation, omission of which is fatal. Indeed, in W.D. itself, despite the trial judge’s error, similar to what occurred here, in instructing the jury that they were engaged in a credibility contest, the conviction was nonetheless upheld: see Y. (C.L.), at para. 8. The issue is not one of form, but rather one of substance. The issue is whether, in substance, the instructions, considered as a whole, left the jury with the impression that, in the end, they had simply to choose between the two versions of the events. Taken as a whole, we are satisfied that the instructions left no such erroneous impression in this case.

[10] Second, as the appellant acknowledges, the instructions on the presumption of innocence, the burden of proof and the standard of proof were complete and correct. The jury was told that the Crown had to prove the guilt of the appellant beyond a reasonable doubt and that a demonstration of probable or likely guilt was not good enough. They were also told that if they were not sure of the appellant’s guilt, they were to find him not guilty.

[11] Third, as the Supreme Court of Canada observed in R. v. Daley, 2007 SCC 53, at para. 58, the charge to the jury does not take place in isolation, but in the context of the trial as a whole. Appellate review must have regard to that context and take into account the addresses of counsel which may fill some gaps left in the charge, even though they are not proxies for it: see, R. v. Pomeroy, 2008 ONCA 521, at para. 117. In this case, the closing addresses of both counsel tracked the W.D. framework. Nothing in the charge contradicted or qualified what counsel said.

[12] Finally, trial counsel for the appellant did not object to the charge on this ground, apparently satisfied that the instructions left the issues fairly for the jury’s consideration from the defence point of view.

[13] The second ground of appeal concerns what the trial judge told the jury about the testimonial accommodation made for the complainant. Here, as I have said, the complainant testified from outside the courtroom as s. 486.2 permits. The trial judge made specific mention of the manner in which the complainant testified when discussing how to assess the evidence. He said, in particular, this:

How do you assess the evidence?

In this case, it is quite important because of the manner and the nature of the witnesses. We had a video of a witness who was not in court and was not sworn to tell the truth sitting here in the witness box as we usually do.

You are to disregard that difference. There is a reason, as I told you, why a young person under circumstances such as this, can testify in the absence of the accused. That was done. The reason is that they may be intimidated by the presence of the accused and not tell the truth. So the law allows that to take place.

[14] The appellant says that this instruction had the effect of implying that the complainant’s credibility was enhanced because of the manner in which she was permitted to testify.

[15] We do not agree.

[16] Testimony from outside the courtroom is one of a handful of procedural mechanisms available to facilitate youthful witnesses giving evidence in prosecutions for sexual offences. Where one of these testimonial accommodations is utilized, trial judges typically instruct jurors that they are to take nothing from the fact that the complainant or witness gave his or her evidence in a different way than other witnesses. And that is what occurred here.

[17] While the language chosen by the trial judge here was unfortunate and did not track the terms used in the available specimen jury instructions, we are not satisfied that the jurors would have concluded from what was said, that the complainant was thereby a more truthful witness because of the testimonial accommodation. We would not give effect to this ground of appeal.

[18] For these reasons, the appeal is dismissed.

“David Watt J.A.”

“M. Tulloch J.A.”

“M.L. Benotto J.A.”