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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. R.J., 2016 ONCA 750

DATE: 20161017

DOCKET: C60498

Doherty, Hourigan, and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.J.

Appellant

Cate Martell, for the Appellant

Brock Jones, for the Respondent

Heard: October 5, 2016

On appeal from the conviction entered on September 1, 2014 and the sentence imposed on December 9, 2014 by Justice Johanne N. Morissette of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant appeals his conviction following a trial by jury on one count of sexual interference against his stepdaughter when she was between the ages of 6 and 12. The complainant was 19 years old at trial.

[2] The appellant’s main ground of appeal is trial unfairness. Specifically, the appellant submits that the breach by Crown counsel at trial (not Crown counsel on appeal) of their agreement not to cross-examine the appellant on his post-arrest conduct resulted in a miscarriage of justice.

[3] The parties had agreed that unless the appellant raised the issues himself, Crown counsel would not cross-examine the appellant about his departure and six-month absence from the jurisdiction after he was arrested and charged, his failure to attend his first preliminary inquiry, and his subsequent guilty plea, conviction and 30-day intermittent sentence for failing to attend.

[4] The appellant made no mention of these matters during his examination in chief. It was only in response to Crown counsel’s question during his cross-examination: “And did you want to clear these charges up as soon as possible?”, that the appellant stated: “No. I left the jurisdiction, but I came all the way across Canada and turned myself in to the London Police Station on my own accord.”

[5] Crown counsel asked that the jury retire and sought a ruling that he be permitted to ask the appellant about his departure, absence from the jurisdiction, and subsequent guilty plea and sentence.

[6] In response, defence counsel vigorously objected to the appropriateness of Crown counsel’s question and to his request that he be permitted to ask further questions about these issues.

[7] The trial judge concluded that because the appellant could have answered the Crown’s question with “Yes, I wanted to” but instead said, “No”, he had put these matters into issue. As a result, she ruled that Crown counsel could “flesh out why he was charged and convicted, and arrested”.

[8] Crown counsel then proceeded to cross-examine the appellant about his failure to attend his first preliminary hearing court date, turning himself into the police station six months later, being charged with the criminal offence of failing to attend court, his conviction and 30-day intermittent sentence. The appellant explained that he left the jurisdiction because he was frightened and needed to clear his head but that he returned to take responsibility for not attending the first preliminary inquiry. On re-examination, the appellant explained that he pled guilty because he had come back and wanted to prove that he was innocent to the two young sons whom he wanted to keep seeing.

[9] In his closing, after pointing out that the complainant and the appellant gave diametrically opposed versions of the relevant events, Crown counsel said:

My friend stated, in his argument, in his closing argument that Mr. J. is innocent, he was honest and had nothing to hide. Well, he hid himself for six months. R.J.’s version of what happened simply makes no sense at all. The entirety of the evidence that you heard over the past week can only lead to guilty beyond a reasonable doubt.

[10] The trial judge instructed the jury that the appellant’s explanation for his leaving the jurisdiction was plausible and that it would be wrong in law for the jury to rely solely on the appellant’s post-arrest conduct to find him guilty of the charged offence. However, she gave no caution to the jury about using the post-arrest conduct to assess the appellant’s credibility.

[11] On September 5, 2014, the jury found the appellant guilty of sexual interference. On December 9, 2014, he was sentenced to imprisonment for three years, less 144 days of pre-sentence custody.

[12] We agree that Crown counsel’s question opened the door to the appellant’s response concerning his post-arrest conduct and resulted in unfairness to the appellant.

[13] Crown counsel asked a question that arguably invited a one-word answer, either “yes” or “no”. Witnesses, however, often do not provide the anticipated answer. Crown counsel should reasonably have foreseen the possibility that the question would lead the appellant into evidence about his post-arrest conduct. Crown counsel should not have asked the question in front of the jury without first vetting the question with the trial judge and giving counsel for the defence an opportunity to raise the propriety of the question.

[14] It was at least reasonably foreseeable that the question posed by Crown counsel would lead into the areas that counsel had agreed would not be the subject of evidence unless first raised by the appellant. Crown counsel’s question was ill-advised and generated evidence that should not have been before the jury given the agreement between counsel.

[15] The effect of the introduction of the appellant’s post-arrest conduct was not minor. It affected the jury’s assessment of the appellant’s credibility and prejudiced the appellant in his defence.

[16] The appellant submits that if he had known that his conviction would be introduced at trial, he may very well have presented his evidence and conducted his defence in a different way. To the appellant’s detriment, the breach occurred at the end of his cross-examination and took the appellant completely by surprise.

[17] More significant, however, was the risk of prejudice caused by Crown counsel inviting the jury in his closing to use the evidence of the appellant’s post-arrest conduct to negatively assess the appellant’s credibility, and the absence of any jury instruction not to use this evidence for that purpose.

[18] This was a case that turned entirely on the credibility of the complainant and the appellant. As Crown counsel fairly acknowledged, this was not an overwhelming case for the Crown. A reasonable jury could have gone either way. There is a real risk that the jury could have resorted to the appellant’s post-arrest conduct in resolving the very difficult credibility issue that it had to decide in arriving at a verdict.

[19] In the end, the jury heard evidence that it should not have heard that may well have had a negative impact on the appellant’s credibility. In a case turning entirely on credibility assessment, the appellant has demonstrated the requisite prejudice resulting in a miscarriage of justice.

[20] For these reasons, we allow the appeal and order a new trial.

“Doherty J.A.”

“C.W. Hourigan J.A.”

“L.B. Roberts J.A.”