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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. C.K-D., 2016 ONCA 66

DATE: 20160125

DOCKET: C59503

Sharpe, Hourigan and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C. K-D.

Appellant

C. K-D., in person

Lou Strezos, duty counsel

Michael Bernstein, for the respondent

Heard: October 7, 2015

On appeal from the conviction entered on March 25, 2014 by Justice Catherine D. Aitken of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on October 23, 2014, with reasons reported at 2014 ONSC 5509.

Hourigan J.A.:

A. Overview

[1] The appellant was convicted following a jury trial of one count of sexual interference and one count of sexual assault. He received a sentence of six months’ incarceration followed by two years’ probation on the sexual interference count. The sexual assault conviction was stayed pursuant to the rule in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.

[2] The appellant appeals his conviction, arguing that the trial judge erred in her instruction to the jury regarding how they should assess the credibility of the complainant, A.Y. Specifically, he submits that the trial judge erred by suggesting to the jury that they should assess A.Y.’s testimony as if she was a 12 year old witness and not a 17 year old witness. The appellant also seeks leave to appeal sentence.

[3] For the reasons that follow, I would allow the appeal, set aside the convictions and conditional stay, and order a new trial.

B. Background Facts

[4] A.Y. was 12 years old in 2009, and lived with her mother in Buffalo, New York. She spent the summer vacation that year with her father who lived in Hamilton, Ontario. In early July, she travelled with her father to Ottawa, Ontario for his wedding.

[5] On the afternoon of July 5, 2009, A.Y.’s father, his new wife, and his wife’s sister attended a church service. A.Y. remained behind at the sister’s residence with the appellant and her new step-brother. The appellant was the sister’s son, and 21 years old at the time.

[6] A.Y. testified that while she was in the bedroom watching television, the appellant came into the room. He pinned her down, pulled down her pants and underwear, and kissed her vagina. She told him to stop. He then pulled up A.Y.’s shirt and bra and kissed her breasts. He also kissed her lips. He then left to go to the bathroom. Later, he told A.Y. not to tell anyone what had happened.

[7] A.Y. testified that she called her father’s mobile phone immediately after the alleged assault, but that she could not reach him. A.Y’s father testified that his mobile phone was on silent mode during the church service and that he did not answer at first, but after a few missed calls he went outside and spoke with A.Y. on the phone. He testified that during that call A.Y. asked him when he was coming home, but did not make any disclosure about the alleged assault. Nothing was said about the alleged assault for the next 10 months.

[8] In May 2010, A.Y. sent an email to her father describing what had happened. In the email, she said that the appellant had come back to the room and kissed her again after leaving to go to the bathroom. This differed from her video evidence in chief at trial, in which she said he did not come back. On cross-examination, she stated that the version of the assault described in her email to her father was correct.

[9] At the time of trial A.Y. was 17 years old. The appellant did not testify.

C. Issues

[10] This appeal raises the following issues:

1. Did the trial judge err in her instruction to the jury regarding the assessment of A.Y.’s credibility?

2. Was the sentence imposed unfit?

D. Analysis

[11] On Friday, March 21, 2014, the trial judge began instructing the jury. On that day she only read out a portion of her charge, a draft of which she had provided to counsel in advance via email. The areas covered in this part of the charge included the duties of jurors, general legal principles, and an instruction regarding evidence, which contained a section on the evidence of child witnesses that read in part as follows:

Next, in regard to the evidence of children. The Supreme Court has provided some direction as to how evidence regarding events that happened when a witness was a child should be assessed. Every person giving testimony in court of whatever age is an individual whose credibility and evidence must be assessed by reference to criteria appropriate to his or her mental development, understanding and ability to communicate. For example, as a general rule, when an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. However, with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time, location, and the exact order of events, should be considered in the context of the age that she was at the time of the events to which she was testifying. In this case, A is now 17 years of age. She testified about events that occurred when she was 12 years of age. So in terms of her evidence pertaining to the events, it is the memory of a 12 year old that you are really considering. Since children may experience the world differently from adults, it is hardly surprising that details important to adults like time and place, may be missing from their recollection. For this reason, a flaw such as contradiction in a witnesses testimony regarding events that happened in childhood may not warrant the same effect as a similar flaw in the testimony of an adult witness testifying about events that occurred in adulthood. The credibility of every witness who testifies before the courts, and reliability of their evidence must of course be carefully assessed but assessed using common sense that takes into account the age of the witness when the alleged events occurred and the age of the witness when testifying. This does not change the onus on the Crown to prove all essential elements of an offence beyond a reasonable doubt.

[12] At 5:15 p.m. that day the trial judge provided counsel via email with a draft copy of what was identified as a “revised” jury charge. This draft included the second part of the jury charge, which the trial judge proposed to read to the jury on Monday, March 24, 2014.

[13] On Sunday, March 23, 2014 at 2:40 p.m. defence counsel sent an email to the trial judge regarding the “revised” charge, stating:

In the section Evidence of Children, at page 13, paragraph 1, I noticed you added the following sentence to this version of the charge, which was not in your previous draft. Indeed, you read this to the jury on Friday: “So, in terms of her memory of the actual events, it is the memory of a 12-year old that you are considering.”

I think that it would be more accurate to say that “it is the memory of a 17-year old, regarding the events she says happened to her when she was 12, that you are considering.”

[14] On the morning of Monday, March 24, 2014, the following exchange occurred between the trial judge and defence counsel in the absence of the jury regarding the instruction on the evidence of children:

THE COURT: In terms of the issue about the memory, I had intended to say that we are talking about the memory of a twelve-year old, because it was when she was 12 that the memory was created. Her appreciation of what happened was created when she was 12. She later recounts it when she is 17 but it was for that reason that I worded it that.

MR. GILBERT: Yes, Ms. Dufort and I discussed it, and I think Ms. Dufort expressed more or less in the terms that Your Honour did and in the end it was probably, but when I think about it again, maybe a bit semantic. Maybe sometimes lawyers don’t have – when we have an opportunity to get nit-picky for a change we do, not to say that that was the reason, but yes, I think most people would know what you meant by that and I think so.

THE COURT: What was meant by that, yes.

MR. GILBERT: Yes, so it’s not a ...

THE COURT: Basically I’m saying the memory was created when she was 12.

MR. GILBERT: Yes.

[15] The trial judge made no correcting instruction in regard to her charge on the evidence of children.

[16] The appellant submits that the trial judge erred by telling the jury that “it is the memory of a 12 year old that you are really considering.” According to the appellant, this instruction suggested to the jury that A.Y.’s credibility should be assessed in accordance with the criteria applicable to a 12 year old and not a 17 year old. The Crown submits that the trial judge did not err and that it would have been clear to the jury in context of the charge as a whole that all that the trial judge was saying was that A.Y.’s memories were formed when she was 12 years old.

[17] This court’s decision in R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, is instructive on this issue. In that case, the appellant was convicted of sexual assault and sexual interference. The complainant was 19 years old when she testified at trial regarding a series of sexual assaults that occurred from the time she was approximately seven years old to the age of 17. The court stated, at para. 10, that there are no inflexible rules regarding when a witness’ evidence should be evaluated according to “adult” or “child’ standards. The court also noted that the Canada Evidence Act, R.S.C. 1985, c. C-5, makes no reference to “adult” or “child” witnesses, but refers only to witnesses who are “14 years or older” and “under 14 years of age.”

[18] In A.M. the court also stated, at para. 11, the following regarding the credibility assessment of an adult witness testifying about events that occurred when she was a child:

Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred…. [Citations omitted.]

[19] The court went on to find that the trial judge erred when he assessed the complainant’s evidence as if she was a child and held, at para. 25, that:

The trial judge was obliged to assess her credibility according to the criteria applicable to adult witnesses, not the somewhat lessened standard of scrutiny associated with child witnesses…. While the trial judge was entitled to apply a less exacting standard to peripheral matters that occurred during the complainant’s childhood, he erred in assessing the complainant’s credibility as if she were testifying as a “child”…. [Citations omitted.]

[20] As a consequence of this and another error committed by the trial judge, the appeal was allowed and a new trial was directed.

[21] The question in the present case is whether the trial judge’s statement “it is the memory of a 12 year old that you are really considering” meant, or could be taken to mean, that the jury should assess A.Y.’s credibility on non-peripheral matters as if she were 12 years old. If that is the case, then the trial judge erred in law.

[22] It is not the function of this court to examine isolated statements in a jury charge free from their context to determine whether the charge serves its purpose. The focus of appellate review of jury charges is whether, after a functional and contextual review of the charge and of the trial as a whole, the jury instructions adequately prepared the jury for deliberations: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39.

[23] The context of the instruction in this case is important. At trial, the defence sought to discredit A.Y. by highlighting discrepancies between her description of the events surrounding the alleged assault and her father’s recollection of those events. The defence also focussed on the discrepancy between A.Y.’s description of the alleged assault and what she later described to her father in her email. In both prongs of attack, A.Y.’s credibility was critical. This is not surprising as the Crown’s case was unsupported by any physical evidence or other eyewitness testimony. In short, A.Y.’s credibility was central to the case.

[24] With that context in mind, I turn to the impugned statement in the charge. The trial judge may well have only meant to convey that A.Y. formed her memory of the assault when she was 12 years old. It is also arguable that the sentence read in context was meant to be limited to peripheral matters. However, the difficulty with these arguments is that the trial judge made an unqualified statement that when considering “the events” the jury should be aware that “it is the memory of a 12 year old that you are really considering.”

[25] In my view, this statement could be interpreted to mean that the jury was obliged to assess A.Y.’s credibility as if she was 12 years old. At the very least, the statement, in the context of what was otherwise a correct instruction, would have been a source of confusion for the jury on the critical issue in the trial, being the assessment of A.Y.’s credibility.

[26] I would conclude that the trial judge erred in law in her instruction to the jury. Given the centrality of the error to the jury’s analysis, the conviction cannot stand.

E. Disposition

[27] I would set aside the convictions and the conditional stay and order a new trial on the counts of sexual assault and sexual interference. Given this conclusion, it is unnecessary to consider the appellant’s motion for leave to appeal his sentence.

“C. W. Hourigan J.A.”

“I agree Robert J. Sharpe J.A.”

Benotto J.A. (dissenting):

[28] I have read the reasons of Hourigan J.A. I do not agree that the impugned sentence in an otherwise correct charge would have led the jury to assess the complainant’s testimony about non-peripheral events with a lower standard of scrutiny. Nor do I agree it would have been a source of confusion for the jury.

[29] The impugned sentence cannot be viewed in isolation. The instructions before and after the impugned sentence, and the charge as a whole, made the jury’s task clear. I do not agree that the jury could have been misled. Moreover, even if the impugned sentence – viewed in isolation – did not accurately reflect the law, I do not agree that it could have led to a miscarriage of justice.

The Jury Charge

[30] As stated by Hourigan J.A., it is not the function of this court to examine isolated statements in a jury charge free from their context to determine whether the charge serves its purpose. As I read the impugned sentence in context, the charge served its purpose.

[31] The impugned sentence was in the section of the jury charge on witnesses testifying about childhood events. The surrounding comments in the charge were significant and effectively removed any confusion that may have arisen from the impugned sentence.

[32] Shortly before the impugned sentence, the trial judge correctly addressed how the jury should assess the complainant’s credibility:

[A]s a general rule, when an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

[33] Then, the trial judge specifically identified that, in matters peripheral to the assault, inconsistencies should be considered in the context of the witness’s age when the events occurred:

[W]ith regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistences, particularly as to peripheral matters such as time, location, and the exact order of events, should be considered in the context of the age that she was at the time of the events to which she is testifying.

[34] At this point the trial judge said the impugned sentence: “[s]o in terms of her evidence pertaining to the events, it is the memory of a 12 year old that you are really considering.”

[35] The next sentence in the charge was a reference to the types of peripheral events that can be assessed differently by the jury:

Since children may experience the world differently from adults, it is hardly surprising that details important to adults like time and place, may be missing from their recollection.

[36] As I read this passage, the jury would have understood that the word “events” in the impugned sentence was a reference to peripheral events.

[37] On this basis, the trial judge was not instructing the jury to apply a lower level of scrutiny to the complainant’s credibility on non-peripheral events. Nowhere did the trial judge say that the jury should consider the credibility of a 12-year-old for non-peripheral events. In fact, the opposite was explicitly stated prior to the impugned sentence.

[38] The balance of the jury charge addressed the assessment of witness credibility. There was really only one issue for the jury: to determine if the evidence proved beyond a reasonable doubt that the complainant was sexually assaulted as alleged. This non-peripheral issue did not involve differing versions of the same event. The appellant, as was his right, did not testify.

[39] The trial judge repeatedly cautioned the jury about the need to carefully assess the evidence and to be satisfied of the appellant’s guilt beyond a reasonable doubt.

[40] The jury was instructed to consider the evidence with a common sense approach. The trial judge said this:

When you are considering whether the evidence of a witness rings true, you must consider who the witness is, what his or [her] life experiences have been, how he or she approaches life, what is important to that person, how he or she likely would have reacted to events. In other words, put yourself into that person’s shoes at the moment in question and in light of that person’s capabilities, beliefs and experiences. It is in that context that you consider whether the witness’s evidence rings true.

[41] And later:

The credibility of every witness who testifies before the courts, and the reliability of their evidence must of course be carefully assessed but assessed using common sense that takes into account the age of the witness when the alleged events occurred and the age of the witness when testifying. This does not change the onus on the Crown to prove all essential elements of an offence beyond a reasonable doubt.

[42] This common sense reference by the trial judge is consistent with recent developments with respect to the credibility assessment of young persons. The rules regarding the assessment of credibility of an “adult” versus a “child” are not inflexible: see R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 10, where this court said:

An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children’s evidence.

[43] A category-based assessment of the credibility assessment of a young person –particularly in the context of a sexual assault allegation – should be avoided. The complainant here was 17 years old when she testified. What is the standard to be applied to a 17-year-old? What is the standard for a 12-year-old? These questions require the court to adopt a flexible, common sense approach. This was proposed by Wilson J. in R. v. B.(G), 1990 7308 (SCC), [1990] 2 S.C.R. 30, at 55:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

[44] In this case, the jury charge fairly described the approach that the jury should take to the credibility assessment of the complainant.

Miscarriage of Justice

[45] If I am wrong about my reading of the jury charge, I still do not agree that the purported error could have led to a miscarriage of justice.

[46] The appellant alleges that there are four inconsistencies which would have impacted on the credibility of the complainant if she were assessed as an adult. Significantly, of the four inconsistencies, two relate to differences between her evidence and her father’s – both of which are on peripheral issues:

• The complainant testified that she was not asked to attend the church service, while her father said she chose to stay behind to watch television.

• The complainant testified that she attempted to call her father three times while he was at church but that he did not answer. The father’s evidence was that he stepped outside after several calls to take the call.

[47] The third alleged inconsistency relates to the complainant’s evidence that she called her father intending to tell him what had happened but did not do so. In my view, this is not an inconsistency at all. There is no standard response to a sexual assault. That a 12-year-old would call her father and then later not tell him does not impact her credibility.

[48] The fourth inconsistency relied upon is the e-mail the complainant sent to her father. It differed from her statement to the police, which she adopted at trial. In the statement to the police she said the appellant went to the bathroom and then did not resume the assault. In her e-mail to her father she said he did.

[49] This inconsistency did not relate to the complainant’s evidence dealing with the substance of the assault. On that she did not waiver. Further, the jury was reminded about this inconsistency in the trial judge’s charge. They were also reminded about the defence position that the allegations arose against the “backdrop of the acrimonious” divorce of her parents and the complainant’s displeasure at her father’s remarriage.

[50] The impugned sentence in the trial judge’s charge referred to the “memory” of a 12-year-old. In regard to what she said happened to her, her memory never changed. Her disclosure to her parents, her statement to the police and her evidence at trial were consistent that the appellant pulled down her pants and sexually assaulted her.

[51] Therefore, whether the jury was assessing the “memory” of a 12-year-old or a 17-year-old was of no moment. Her memory of the non-peripheral events did not change and there were no material inconsistencies. Accordingly, even if the trial judge erred, the error did not result in a miscarriage of justice.

Sentence Appeal

[52] The trial judge imposed a sentence of 6 months’ incarceration, followed by 2 years’ probation. Her reasons considered the aggravating and mitigating factors and her conclusion was within the applicable range. I see no error in principle and would not grant leave to appeal.

Disposition

[53] I would dismiss the appeal as to conviction and sentence.

Released: January 25, 2016 “RJS”

“M.L. Benotto J.A.”