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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-04-13

Docket: C61976

Judges: Watt, van Rensburg and Pardu JJ.A.

Parties

Between

Her Majesty the Queen Appellant

and

K.S. Respondent

Counsel

Benita Wassenaar, for the appellant

Jennifer K. Penman, for the respondent

Hearing

Heard: March 28, 2017

On appeal from: the acquittal entered by Justice Susan J. Woodley of the Superior Court of Justice on March 11, 2016, sitting without a jury.

Decision

By the Court:

Facts and Background

[1] K.S. was found not guilty of four counts of sexual offences after a trial before a judge of the Superior Court of Justice sitting without a jury. Each count involved the same complainant, the five-year-old daughter of a woman with whom K.S. had a rocky relationship.

[2] The complainant disclosed instances of sexual abuse by K.S. around the same time as her mother determined that she would end her relationship with K.S. The disclosure emerged in response to a direct leading question of K.S. by her mother. The following day, the complainant provided a videotaped statement to police that was tendered at trial under s. 715.1 of the Criminal Code.

[3] For all practical purposes, the case for the Crown at trial consisted of the complainant's testimony; her videotaped statement tendered under s. 715.1; and the evidence of her mother. Some forensic evidence was also admitted but it did not provide confirmation of any allegations of sexual impropriety.

[4] The defence advanced, unsupported by the testimony of K.S. or any other evidence, was that the events alleged by the complainant never took place.

The Grounds of Appeal

[5] The Crown advances four grounds of appeal. She submits that the trial judge erred:

i. in approaching the complainant's testimony in a manner that is inconsistent with the authorities governing the evidence of child witnesses;

ii. in imposing a requirement that the complainant remember the events described in her videotaped statement in order for the videotape to be admissible under s. 715.1 of the Criminal Code;

iii. in relying on information that was not part of the trial record in reaching her conclusion on the admissibility of the videotapes statement as evidence; and

iv. in making a finding of fact from which there was no evidence.

Discussion

[6] We do not give effect to any of the grounds of appeal advanced by the Crown. As a result, the appeal is dismissed.

[7] In our approach to this appeal, we remind ourselves that, on appeals from an acquittal, the Crown is limited under s. 676(1)(a) of the Criminal Code to grounds of appeal that involve questions of law alone. We also have in mind instructions from the Supreme Court of Canada that we ought to be slow to interfere with a judge's handling of the evidence and findings on credibility as they generally do not raise questions of law alone: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24.

Ground #1: Erroneous Approach to Complainant's Evidence

[8] In our view, a close review of the whole of the trial judge's reasons does not support the claim that she failed to apply the proper principles in assessing the evidence of the complainant.

[9] The trial judge's reasons accurately record the principles that govern the assessment of the evidence of child witnesses. They reveal the need for a common sense approach and disclose no hint that the trial judge considered the complainant's evidence inherently unreliable on account of her age. Nothing the trial judge said or failed to say after her statement of those principles revealed any departure from their teachings in her subsequent analysis.

[10] The trial judge also reminded herself that this common sense approach to the evidence of children does not mean that their evidence is not subject to the same standard of proof as the testimony of adult witnesses in criminal cases. A verdict of guilt requires a solid foundation whether its evidentiary support resides in the testimony of a child, of an adult, or of some combination of the two. That a child is the principal or sole support for the Crown's case does not lessen the standard of proof required to establish guilt.

[11] In this case, as the trier of fact, the trial judge was not satisfied that the case for the Crown, considered as a whole, carried such convincing force that it satisfied the demanding standard of proof required to establish guilt in a criminal case. The adequacy of the evidence adduced to discharge the burden of satisfying the standard of proof required was for the trial judge to determine. Her finding that it was inadequate, untainted by legal error, does not raise a question of law, thus is not reviewable on an appeal by the Crown: J.M.H., at para. 39; R. v. B. (R.G.), 2012 MBCA 5, 287 C.C.C. (3d) 463, at paras. 34 and 36.

Ground #2: Adoption of the Video Statement under Section 715.1

[12] The case for the Crown consisted in part, better said in large part, of a videotaped statement of the complainant tendered for admission under s. 715.1 of the Criminal Code. For this statement to become evidence at trial, the party tendering it as evidence, here the Crown, must establish that the complainant adopted the contents of the videotape while giving evidence at trial: R. v. F. (C.C.), [1997] 3 S.C.R. 1183, at para. 30.

[13] The test for adoption is not overly stringent. It does not require that the witness have a present recollection of the events discussed and need not meet the standard for adoption of a prior inconsistent statement by an adult witness: F. (C.C.), at paras. 33, 36, and 40. Under s. 715.1, the statement is adopted if the complainant or witness recalls making the statement and trying to be truthful at the time the statement was made: F. (C.C.), at para. 41.

[14] The trial judge concluded that the videotaped statement met the requirements of s. 715.1 subject to the complainant's adoption of it at trial. The Crown says that the judge erred in requiring that the complainant recall the events described in the videotape in order to satisfy the adoption requirement.

[15] The trial judge expressed concern about whether the complainant adopted the statement, but her concern was directed more to whether the complainant remembered making the statement to the officer and whether she was being truthful at the time. A fair reading of the reasons does not reveal that the judge required that the complainant have a current recollection of the relevant events before a finding of adoption could be made.

[16] In the end, the trial judge's reasons appear to have proceeded on the assumption that the complainant had adopted her videotaped statement, even though she (the trial judge) may not have reached an affirmative conclusion on the issue.

[17] It is important not to confuse the threshold test for the admissibility of the videotape, on the one hand, with the ultimate reliability of the complainant's evidence (of which the videotape is part) on the other. We are satisfied that the rejection of the complainant's evidence was not contaminated by the erroneous exclusion of the videotaped statement. The statement was admitted into evidence and considered by the trial judge.

[18] The trial judge's finding that the Crown had not proven its case beyond a reasonable doubt was rooted in her rejection of the complainant's evidence. Her reasons for doing so included, but were not limited to:

i. the complainant's tendency to blend fact and fiction;

ii. the inconsistencies between the evidence of the complainant and the testimony of her mother;

iii. the responses the complainant made to questions asked in cross-examination; and

iv. the timing and manner in which the disclosure came about.

In this case, these were appropriate considerations.

Ground #3: Reliance on Evidence Not Part of Trial Proceedings

[19] The Crown contends that the trial judge erred in her decision on whether the complainant adopted her videotaped statement by considering evidence that was not part of the trial record. The "evidence" consisted of a reference in argument to observations made by Crown counsel at the preliminary inquiry about the conduct of the complainant when the video was played there and the fact that the statement was admitted as evidence at the preliminary inquiry.

[20] It is fundamental that findings of fact made at trial must be grounded on evidence properly admissible in those proceedings: R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 61; R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541. This rule applies whether the findings of fact in issue are those essential to determine the admissibility of a piece of evidence, or to establish proof of an essential element of an offence charged.

[21] This ground of appeal fails for two reasons. The first relates to the source of this information: it is Crown counsel who relied on this information in seeking admission of the videotaped statement at trial. It ill lies in the mouth of the Crown on appeal to complain about reference to it in the trial judge's admissibility determination. The second is that the reference was not material to the trial judge's determination of the reliability of the complainant's evidence, an issue separate and apart from the admissibility of the videotaped statement.

Ground #4: Findings of Fact without an Evidentiary Foundation

[22] The final ground of appeal alleges that the trial judge made findings of fact in the absence of an evidentiary foundation. The complaint focuses on the trial judge's inference that the complainant could not separate fact from fiction. The trial judge drew this inference from some things the complainant said in her videotaped statement.

[23] The trial judge's inference that the complainant was unable to separate fact from fiction was grounded in the evidence adduced at trial. It was an inference that the trial judge was entitled to draw. It was a relevant consideration for the trial judge to take into account in assessing the credibility of the complainant and the reliability of her evidence. That another or other inferences were available from the same evidence does not mean that the trial judge erred in law in the inference she drew or in the conclusion she reached.

Conclusion

[24] For these reasons, the appeal is dismissed.

Released: April 13, 2017 ("DW")

"David Watt J.A."

"K. van Rensburg J.A."

"G. Pardu J.A."