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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.A., 2015 ONCA 754

DATE: 20151106

DOCKET: C56264

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.A.

Appellant

Jill D. Makepeace, for the appellant

Deborah Calderwood, for the respondent

Heard: September 15, 2015

On appeal from the conviction entered on May 25, 2012 by Justice Joseph A. De Filippis of the Ontario Court of Justice, with reasons reported at 2012 ONCJ 317, and from the dismissal of a motion for a mistrial dated August 8, 2012, with reasons reported at 2012 ONCJ 526.

Brown J.A.:

I. OVERVIEW

[1] The appellant, J.A., a young person, was convicted of sexual assault, sexual interference, invitation to sexual touching and indecent act (exposure) relating to R.G., another young person. He was acquitted of the same four charges relating to M.R., also a young person. The appellant appeals against his convictions.

[2] The appellant raises two grounds of appeal:

(i) The trial judge erred in dismissing the appellant’s motion for a mistrial brought after a finding of guilt, but before sentencing; and

(ii) The trial judge failed to scrutinize meaningfully the evidence presented by the Crown in relation to R.G.’s allegations and provided insufficient reasons for his assessments of the credibility of the witnesses.

[3] At the hearing of the appeal, the appellant limited his submissions to the mistrial issue.

II. FACTS

[4] At trial, evidence was given about four incidents involving R.G. and the appellant, who was between 12 and 14 years old at the time of the incidents alleged. R.G. was four years younger than the appellant. Four videotaped statements that R.G. gave to the police were admitted pursuant to s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46.

The Mosport Incident

[5] R.G. was 11 years old at the time of the trial. R.G. stated that when he was seven or nine years old, he went with his mother to an event at Mosport where he shared a tent with the appellant and another youth, D.H. In a videotaped statement to the police, R.G. said he walked into the tent and saw the appellant and D.H. masturbating. He refused their invitation to join in the activity, and the appellant’s demand that he engage in oral sex. According to R.G., at that point, the appellant grabbed his head and forced him to perform fellatio.

[6] D.H., who was 15 years old at the time of trial, gave a statement to the police about the events at Mosport. D.H. said he saw the appellant and R.G. fully naked, with R.G. on top of the appellant, and they were playing with each other’s privates. In his statement, D.H. said the touching of private parts between the appellant and R.G. continued the following night. D.H. at first denied that he had masturbated with the appellant in the tent, although he eventually admitted to doing so. At trial, D.H. testified that the appellant and R.G. only engaged in sexual activity on one night.

[7] The appellant confirmed that he was at Mosport one weekend with R.G., D.H., and others, where he shared a tent with D.H. and R.G. He testified that on the first evening R.G. came into the tent and asked if he could “jack off” with the appellant and D.H., at which point R.G. removed his clothes and jumped on top of the appellant. According to the appellant, he pushed R.G. away and that was the end of the matter.

The Toy Room Incident

[8] R.G. also gave statements to the police about an incident in a toy room during a sleepover at the appellant’s house. In his first statement, R.G. stated the appellant had forced him to perform oral sex. In a second statement, R.G. said the appellant made him bend over and “he put his dink in my bum.” At trial, R.G. testified that the forced fellatio had only occurred at Mosport, not in the toy room.

[9] The appellant denied R.G.’s allegation.

Incidents Involving Teddy Bears, Dolls and a Latex Glove

[10] In his third statement to the police, R.G. said he made voodoo dolls with the appellant by cutting up teddy bears, replacing the stuffing with safety pins and other sharp objects, and sewing them back together. Afterwards, the appellant told R.G. that he had cut some of his pubic hairs and put them inside the bears. R.G. also reported that he saw the appellant take a Barbie doll and rub it against his penis.

[11] In his final statement to the police, R.G. stated that the appellant had put a latex glove on his hand and then “shoved his fingers up my bum and his bum.”

[12] The appellant also denied these allegations.

The Fort Incident

[13] B.P. knew both the appellant and R.G. and was 15 years old at the time of the trial. B.P. gave evidence about an incident that occurred in a fort in the appellant’s backyard when R.G. was about seven years old. B.P. stated that he was masturbating with the appellant when R.G. arrived at the fort. He then saw the appellant and R.G. engage in oral and anal sex.

[14] R.G. did not complain about this incident in any statement to the police, nor did he testify about it.

[15] The appellant testified that one day R.G. came into his fort while he and B.P. were masturbating. According to the appellant, R.G. asked to join in, but the appellant said “no”, as he was finished. The appellant denied forcing R.G. to participate in oral or anal sex.

Decision of the Trial Judge

[16] The appellant acknowledged that he had masturbated with R.G., which led the trial judge to convict the appellant of the offence of exposing his genital organs to a person who was under the age of 16 years, contrary to s. 173(2) of the Criminal Code. Although the appellant denied all the allegations of oral and anal sex involving R.G., the trial judge also found the appellant guilty of sexual assault, sexual interference and invitation to sexual touching.

III. FIRST GROUND OF APPEAL: THE DISMISSAL OF THE DEFENCE MISTRIAL MOTION

[17] The appellant’s first ground of appeal concerns the trial judge’s denial of the defence request for a mistrial, made after the verdicts were entered but before sentencing.

The Reasons of the Trial Judge

[18] The trial judge delivered his reasons for judgment on May 25, 2012. Sentencing was scheduled for July 3, 2012.

[19] On June 11, 2012, the trial judge received a letter from R.G.’s grandfather. In the letter, the grandfather wrote, in part:

The evening following your verdict my grandson told me in confidence that what he told Your Honour in court was only a few of the times that these things happened and he estimated over 100 times these things have happened.

[20] The trial judge provided counsel with the grandfather’s letter. The appellant thereupon moved for a mistrial, maintaining that the post-conviction statement by R.G. set out in his grandfather’s letter was capable of undermining R.G.’s credibility and his version of events given at trial. The appellant sought to examine R.G. on the motion to confirm the statement and explain what it meant.

[21] The trial judge denied the mistrial motion and the request to examine R.G. on the basis that the proposed fresh evidence (the grandfather’s letter) did not meet the fourth criterion for admissibility set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, namely, that the evidence, if believed, could not reasonably be expected to have affected the result at trial.

Positions of the Parties

[22] The appellant submits that the statement made by R.G. to his grandfather was a “game-changer”, significantly escalating the number of instances of sexual activity with the appellant alleged by R.G. from those he had recounted at trial. As a result, the appellant says the statement created a material inconsistency in R.G.’s account of events, raising concerns about his credibility. By failing to allow the appellant to examine R.G. on his statement to his grandfather or to declare a mistrial, the trial judge denied the appellant the right to make full answer and defence, resulting in a miscarriage of justice.

[23] The Crown submits that in refusing to declare a mistrial, the trial judge did not err in the exercise of his discretion. The trial judge was in the best position to assess the significance of the statement and whether it could have affected the result he reached. His decision was not clearly wrong, nor was it based on any erroneous principle. Accordingly, it attracts deference from this court.

Analysis

[24] The trial judge correctly identified the legal principles applicable to a motion to set aside a finding of guilt and declare a mistrial: a trial judge who has made a finding of guilt on disputed facts has the authority to vacate the adjudication of guilt at any time before the imposition of sentence or other final disposition, but such authority should be exercised only in exceptional circumstances and in the clearest of cases: R. v. Lessard (1976), 1976 1417 (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73; R. v. Kippax, 2011 ONCA 766, 286 O.A.C. 144, at para. 62, leave to appeal refused [2012] S.C.C.A. No. 92.

[25] Mistrials are a remedy of last resort and should only be declared to avoid miscarriages of justice: R. v. A.G., 2015 ONCA 159, 124 O.R. (3d) 758, at para. 50. A trial judge is best positioned to assess whether a mistrial is warranted in the circumstances. Consequently, an appellate court owes a trial judge significant deference on a determination whether to grant a mistrial, and should only interfere with a decision to deny a mistrial if that decision is clearly wrong or based on an erroneous principle: A.G., at paras. 51 and 52.

[26] As the trial judge observed, the criteria in Palmer provide helpful guidance to a trial judge faced with an application to re-open a trial after a finding of guilt has been recorded: Kippax, at para. 63. In considering whether the statement attributed to R.G. in the grandfather’s letter met the Palmer criteria, the trial judge’s analysis focused on the fourth Palmer criterion – i.e., whether the evidence, if believed, could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[27] The trial judge concluded that the fourth Palmer criterion was “not met in this case and the circumstances are not such that the extraordinary relief sought should be granted.” He stated:

Assuming the grandfather accurately reported what RG told him, there is no basis upon which to conclude that this could affect my findings of credibility or fact. In this regard, I note that as RG is a young boy, his reference to “over 100’s of times” should not be taken literally; it is more likely a phrase that means “much more than I said before”. Moreover, it is mere speculation to say this is a reference to sexual assaults. Indeed, the contrast in the letter between “a few times” and “over 100’s of times”, as well as the evidence at trial suggests otherwise. RG said that he was sexually assaulted by the Defendant on two occasions but testified about more instances of other sexual activity. If one were to guess at the meaning of the statement, a likely explanation is that it refers to the other sexual activity – conduct that other witnesses, including the Defendant, in part, confirmed happened on numerous occasions. The initial disclosure by RG was limited; it expanded over time in several police interviews and testimony before me. This was the subject of much cross-examination at trial. Having regard to all the evidence heard, the statement reported by the grandfather adds little to issues already litigated and decided.

[28] The appellant submits that the trial judge misapprehended the relevance and probative value of R.G.’s post-conviction statement and, instead, engaged in a highly speculative interpretation of its meaning. While it was inappropriate for the trial judge “to guess at the meaning of the statement,” in my view his conclusion that the statement added little to issues already litigated and decided was not clearly wrong or based on an erroneous principle.

[29] Four charges alleging sexual offences by the appellant against R.G. were before the trial judge for adjudication. The trial judge was in the best position to determine whether there was any basis on which to conclude that the statement R.G. made to his grandfather, if accepted as true, could have affected his findings of credibility or fact in respect of those charges. The trial judge heard all the evidence at trial and observed the witnesses who testified, including R.G. Many of them were youthful witnesses. The trial judge’s trial reasons confirm that he was alive to the care required to assess the reliability and credibility of their evidence as youthful witnesses, including their statements to the police.

[30] As well, this was not a case where the only evidence about the alleged incidents came from the complainant and the appellant. On the contrary, both D.H. and B.P. gave evidence that they had witnessed sexual activity between the appellant and R.G.

[31] In those circumstances, deference is owed to the trial judge’s conclusion that the statement attributed to R. G. – “he estimated over 100 times these things have happened” – would not have affected the findings of credibility or fact he made in respect of the incidents that were before him.

[32] The trial judge’s reasons on the mistrial motion confirm that he appreciated and correctly applied the principles governing mistrial applications and the Palmer criteria for the admission of fresh evidence in the context of the whole of the evidence led at trial. His discretionary decision to dismiss the mistrial motion is neither clearly wrong nor based on an erroneous principle. I therefore would reject this ground of appeal.

IV. SECOND GROUND OF APPEAL: CREDIBILITY ASSESSMENTS MADE BY THE TRIAL JUDGE

Positions of the Parties

[33] The second ground of appeal advanced by the appellant concerns the credibility findings made by the trial judge. The appellant did not address this ground during oral argument, but relied on the submissions contained in his factum. The appellant submits that the trial judge failed to scrutinize meaningfully the evidence presented by the Crown in relation to R.G.’s allegations, despite taking a rigorous approach to the evidence of the accused. In making this submission, the appellant contends that the trial judge erroneously concluded that R.G.’s account of events was confirmed by the testimony of two Crown witnesses, B.P. and D.H. He also maintains that the trial judge failed to adequately assess inconsistencies in R.G.’s testimony. Finally, the appellant challenges the sufficiency of the trial judge’s reasons for his credibility findings and for his conclusion regarding the appellant’s culpability for the offences involving R.G.

[34] The Crown submits that the trial judge did not err in his treatment of the evidence and the appellant’s complaints amount to no more than disagreements with the trial judge’s appreciation of the evidence before him.

Analysis

[35] The appellant acknowledges that in order to establish that the trial judge erred by applying different standards of scrutiny to his evidence and that of the Crown, he “must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant”: R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at p. 491.

[36] To make his argument, the appellant focuses on the sufficiency of the trial judge’s findings about the credibility and reliability of the testimony of the principal witnesses and the adequacy of the reasons he gave for those findings.

[37] Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Only rarely will deficiencies in a trial judge’s credibility analysis warrant appellate intervention, although a failure to sufficiently articulate how credibility concerns have been resolved may rise to the level of reversible error: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; R. v. T.S., 2012 ONCA 289, 284 C.C.C. (3d) 394, at para. 46.

[38] In this case, the trial judge provided thoughtful and cogent reasons in support of his credibility findings. With respect to the Crown’s witnesses, he reviewed the evidence in some detail, including the evidence that weakened the strength of the Crown’s case regarding the charges related to R.G. He took specific account of inconsistencies in the witnesses’ testimony, the significance of R.G.’s incremental disclosure of the appellant’s sexual acts, and the actions and impact of the conduct of the complainant’s mother on R.G.’s statements to the police. That the trial judge was careful in his review of the evidence is apparent from his self-direction that the testimony of R.G.’s mother, for reasons the trial judge explained, should be approached with caution.

[39] Contrary to the appellant’s submission, in my view the trial judge’s evaluation of the appellant’s evidence was sufficient, intelligible, and even-handed. The trial judge provided detailed reasons for rejecting the appellant’s denial of the sexual activities alleged, focusing on both the appellant’s own testimony and that of the Crown witnesses where it contradicted the appellant’s account of events. As he was obliged to do, the trial judge evaluated the appellant’s credibility in the context of the evidence as a whole. I see no imbalance in his analysis of the appellant’s testimony or in his approach to the evidence as a whole.

[40] Nor do I accept the appellant’s contention that the trial judge erred by relying on parts of the evidence of B.P. and D.H. as confirmatory of key aspects of R.G.’s account that he had been forced to engage in oral and anal sex with the appellant.

[41] B.P. testified that he witnessed the appellant forcing anal sex on R.G., while D.H. testified that he observed R.G. and the appellant naked, with R.G. on top of the appellant, and both touching each other’s private parts. The trial judge was alert to the inconsistencies between these witnesses’ evidence and that of R.G., including that R.G. had not mentioned the fort incident in any of his statements. It was open to him to accept the core features of their testimony, which clearly implicated the appellant in sexual activity with R.G, who, because of his age, was incapable of consent. The trial judge provided clear and direct explanations of the basis for his findings that the evidence of B.P. and D.H. corroborated key aspects of R.G.’s testimony.

[42] R.G. was only about seven years of age when the fort incident occurred and approximately nine years old at the time of the Mosport incident. He was 11 years of age at the time of trial. In these circumstances, it was appropriate for the trial judge to consider R.G.’s age and maturity when evaluating his credibility and the reliability of his testimony, especially in light of R.G.’s reluctance to disclose the appellant’s acts: R. v. Barua, 2014 ONCA 34, 315 O.A.C. 83, at para. 25.

[43] Finally, the trial judge’s reasons for convicting the appellant of the charges relating to R.G. are firmly anchored in the evidentiary record. They afford ample scope for meaningful appellate review. Accordingly, they meet the standard for sufficiency of reasons established by R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, and related cases.

V. DISPOSITION

[44] For the reasons given, I would dismiss the appeal.

Release: November 6, 2015 (EAC)

“David Brown J.A.”

“I agree E.A. Cronk J.A.”

“I agree Gloria Epstein J.A.”