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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. J.J., 2014 ONCA 759

DATE: 20141031

DOCKET: C56623

Sharpe, LaForme and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.J.

Appellant

Michael Dineen and Caitlin M. Pakosh, for the appellant

Tracy Kozlowski, for the respondent

Heard and released orally: October 24, 2014

On appeal from the conviction entered on June 15, 2012 and the sentence imposed on December 6, 2012 by Justice Robert A. Riopelle of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his convictions on two counts of sexual assault following a judge alone trial.

[2] The complainant was the appellant’s 14-year-old stepdaughter. The Crown led evidence from the complainant and her mother, the appellant’s then spouse, who was also a police officer. The Crown led evidence from the complainant’s mother that after her daughter had disclosed the allegations to her, she ordered the appellant from the house. Initially unsure about who to believe, she decided to go to the appellant to attempt to trick him into confessing by telling him that if it was her daughter who initiated sex, she, the mother, would understand and attempt to reconcile with the appellant. The complainant’s mother testified that the appellant admitted that he had had sex with the complainant at her instigation.

[3] The appellant testified and denied the allegations and also denied making any admission to the complainant’s mother

[4] The trial judge accepted the evidence of the complainant and her mother and rejected that of the appellant.

[5] The appellant raises two grounds of appeal. It is only necessary for us to deal with the first ground relating to the evidence of the admission made by the appellant to the complainant’s mother.

[6] In his reasons for judgment, the trial judge described the circumstances of the alleged admission as follows: “…because she’s a police officer at this point in time, not just a mother but a police officer, she goes and visits him on the third or fourth day at his mother’s house, and using some trickery, police trickery…” obtains the admission which the appellant denies.

[7] The trial judge rejected the appellants’ denial and again stated that the complainant’s mother was acting as a police officer: “I am beyond a doubt satisfied that he did in fact confess or make that admission to [the complainant’s mother], who was acting at that point in time both as a mother and as a police officer.”

[8] When the evidence of the admission was led, there was no objection or request for a voir dire as to the issue of voluntariness given the complainant’s mother’s status as a police officer. This issue arose for the first time in the reasons of the trial judge. Although the appellant did not raise the point at trial, the trial judge’s finding is clear and unequivocal, and there is nothing in the record to indicate that the defense waived the necessity of the voir dire.

[9] There is ample authority for the proposition that a trial judge has an obligation to conduct a voir dire to assess the voluntariness of the statement where the receiver of the statement is a “conventional” person authority such as a police officer: see R. v. Hodgson (1998), 1998 798 (SCC), 127 CCC (3d) 449 (S.C.C.). Plainly, the appellant knew that the complainant’s mother was a police officer. If the complainant’s mother was acting in her capacity as a police officer, as the trial judge found, the issue of an inducement arises as she suggested that if the appellant admitted having had sex with his stepdaughter, there was a possibility of reconciliation.

[10] While the proposition that the complainant’s mother was acting as a police officer may well be something the Crown could dispute, given the trial judge’s unequivocal finding, it is our view that, absent waiver by the appellant, he should have conducted a voir dire to determine the role in which the complainant’s mother was acting and the voluntariness of the statement.

[11] We cannot accept the Crown’s submission that the verdict would necessarily have been the same without the evidence of the admission as the trial judge attached significant weight to it.

[12] In these circumstances, the appeal must be allowed, the convictions set aside and a new trial ordered.

“Robert J. Sharpe J.A.”

“H.S. LaForme J.A."

“G. Pardu J.A. "