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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.C., 2015 ONCA 370

DATE: 20150526

DOCKET: C58559

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.C.

Appellant

Meaghan Thomas, for the appellant

Greg Skerkowski, for the respondent

Heard: April 10, 2015

On appeal from the conviction entered by Justice C. Kehoe of the Ontario Court of Justice, dated October 9, 2013.

By the Court:

[1] The appellant appeals from her conviction for sexually assaulting a child of approximately five years old.

[2] Following a trial, the trial judge rejected the appellant's evidence and accepted the complainant's evidence that the appellant performed a single act of oral sex on her.

[3] In her reasons for finding the appellant guilty, the trial judge relied, in part, on the unlikelihood that a young child would have the knowledge the complainant displayed about oral sex and on the absence of any evidence at trial concerning any source of such knowledge other than the conduct of the appellant complained of by the child. At para. 224 of her reasons, the trial judge said:

[The complainant] was able to tell and show [the police officer who conducted the complainant's videotaped interview] what [the appellant] did to her and how she licked her vagina with her tongue. The fact that [the complainant] was caught showing Z, her 4 year old cousin, how to lick her vagina although not determinative that it was because of what the [the appellant] had done to [the complainant], corroborates that [the complainant] had seen or had the act performed on her prior to July 2009. There is no evidence before the court that [the complainant] would have seen or experienced the act other than the one time with [the appellant]. It is obviously not something one would expect to be within a 6 year old child's knowledge and especially in [a] family where sex was not even discussed. There was no evidence that [the complainant] had seen similar activity in her home, on TV or anywhere else, other than [the appellant] licking her vagina. [Emphasis added.]

[4] On appeal, the appellant argues that the Crown did not contend at trial that a young child would have no knowledge of the sexual activity at issue. The appellant therefore submits that, to the extent the trial judge considered this a live issue, the trial judge erred in dismissing the appellant’s application under s. 276 of the Criminal Code to cross-examine the complainant in relation to prior sexual activity, or, in the alternative, in failing to permit the appellant to re-open her s. 276 application once the trial judge determined that the complainant’s knowledge about oral sex was a live issue.

[5] In her s. 276 application, the appellant sought leave to cross-examine the complainant on, or lead evidence about, three incidents of alleged prior sexual activity.

[6] In oral argument on appeal, the appellant acknowledged that the conduct allegedly involved in the first two incidents was not sufficiently similar to the conduct forming the subject matter of the offence to warrant a s. 276 order permitting that evidence to be led. She therefore abandoned any reliance on the first two incidents and confined her submissions to the third incident.

[7] The third incident involved an interaction between the complainant, when she was about six, and the complainant's cousin Z., when Z. was about four.

[8] In her s. 276 application, the appellant alleged that Z.'s mother caught Z. "licking the complainant's privates". Further, the appellant alleged that the complainant’s mother became “very angry” when she learned about the incident and that the complainant disclosed her allegations against the appellant to her mother as a result of being disciplined by her mother.

[9] During submissions on the s. 276 application, defence counsel for the appellant (not Ms. Thomas) clarified that she intended to cross-examine the complainant about a motive to fabricate arising from the incident with Z. In her ruling on the application, the trial judge noted that defence counsel "stated several times there is no intention to cross-examine on the actual activity but simply on the consequences of being caught engaging in the activity."

[10] In her ruling on the s. 276 application, the trial judge held that the complainant could be cross-examined as to "the consequences of being caught and whether she was punished and if she was punished and what impact that had on her reporting the allegations concerning the [appellant]."

[11] On appeal, the appellant submits that, the trial judge's ruling on the s. 276 application created unfairness because the trial judge prohibited cross-examination on the incident with Z., yet relied on the absence of evidence at trial of any other source for the complainant's knowledge of oral sex to support a conviction. The appellant submits that cross-examination of the complainant about the incident may have revealed that Z. was actually the source of the complainant's knowledge about oral sex.

[12] We do not accept these submissions.

[13] The appellant's argument that the trial judge should have permitted cross-examination of the complainant at trial to show that the complainant may have learned about oral sex from Z. is raised for the first time on appeal and is contrary to the position taken by the appellant at trial.

[14] At trial, the appellant's position was premised on the theory that the complainant was the instigator of the incident with Z. When cross-examining the complainant at trial, defence counsel asked the complainant why she had dared Z. to lick her. The appellant does not suggest on appeal that this question lacked a proper foundation.[^1]

[15] Although the formal s. 276 application was framed as a request to cross-examine on the incident, defence counsel did not pursue that request on the application. Instead, as mentioned above, defence counsel repeatedly stated that she intended to limit cross-examination to questions about Z.’s motive to fabricate. Since the trial judge was not asked to permit cross-examination on the incident, in our view, she made no error in failing to permit it.

[16] Further, in the face of the defence position at trial that the complainant was the instigator of the incident with Z., we see no error in the trial judge’s reliance on the absence of evidence at trial that the complainant would have seen or experienced oral sex other than the one time with the appellant and on the unlikelihood that a young child would have any knowledge about oral sex. As noted above, defence counsel at trial suggested in cross-examination that the complainant dared Z. to lick her privates and did not pursue the request made in the formal s. 276 application to cross-examine the complainant on the incident.

[17] Similarly, we reject the appellant’s submission that, on determining that the complainant’s prior knowledge of oral sex was a live issue at the trial, the trial judge should have afforded the appellant an opportunity to re-open her s. 276 application. Again, there was no suggestion at trial that the complainant was not the instigator of the incident with Z.

[18] Further, the appellant has not demonstrated any basis on appeal for ordering a new trial to permit her to make a s. 276 application premised on a different theory than the theory she advanced at trial. The appellant has not claimed that defence counsel at trial's suggestion to the complainant that she dared Z. to lick her [the complainant's] privates was improper; she has not raised any other issue concerning ineffective assistance of counsel; and she did not make a fresh evidence application.

[19] In all the circumstances, we are not satisfied that the trial judge’s s. 276 ruling and her subsequent reliance on the absence of evidence concerning an alternate source for the complainant’s knowledge about oral sex created unfairness to the appellant. Further, we see no other basis for ordering a new trial.

[20] The appeal is therefore dismissed.

Released:

“MT” “Janet Simmons J.A.”

“MAY 26 2015” “M. Tulloch J.A.”

“Grant Huscroft J.A.”

[^1]: The evidentiary foundation at trial for what happened during the incident with Z. came from the complainant’s assertion in her videotaped statement to police, which she adopted at trial, and from the testimony of the complainant’s mother. In her videotaped statement, the complainant told police that Z. had licked her “private” and that she got in trouble. The complainant’s mother testified that, on the day in question, she heard Z.’s mother scream, and she went upstairs to see what was going on. She found Z. squatted down and crying “kind of” in front of her daughter. Her daughter had no pants on. She was lifting up her pants and appeared embarrassed. The complainant’s mother also testified that Z.'s mother told her that the complainant was trying to get Z. to lick her vagina. Although the latter statement was hearsay, the complainant’s s. 276 application contains a statement that the complainant disclosed the details of the incident with Z. to her mother and a social worker on August 26, 2010. According to the s. 276 application, the complainant advised these individuals that:

[S]he was playing upstairs with her friend, [Z],and that she dared Z to lick her vagina while they were lying down watching TV at [Z’s] home. [The complainant] advised that this was the only thing that happened because [Z’s] mother, A, came into the room.