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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-06-13

Docket: C60440

Panel: MacPherson, Blair and Epstein JJ.A.

Between:

Her Majesty the Queen Respondent

and

T.H. Appellant

Counsel:

• Delmar Doucette and Janelle Belton, for the appellant
• David Finley, for the respondent

Heard: May 16, 2017

On appeal from: The conviction entered by Justice Roland J. Haines of the Superior Court of Justice, sitting with a jury, on June 2, 2014.

A. Introduction

[1] The appellant was convicted of sexual assault following a jury trial. The complainant was the young daughter of the appellant's sometime partner.

[2] The child complainant gave two videotaped statements to police describing the appellant's sexual contact with her. She also testified, including cross-examination, at the preliminary inquiry.

[3] At trial, the complainant, who was then 11 years old, testified. As the examination-in-chief proceeded, the complainant became progressively unresponsive. She refused to be cross-examined.

[4] Defence counsel brought an application seeking a stay pursuant to s. 24 of the Charter on the basis that the inability to cross-examine the complainant infringed the appellant's Charter s. 7 right to make a full answer and defence.

[5] The trial judge refused to grant a stay, finding that the "extraordinary remedy of a stay" would not be appropriate in the circumstances. Instead, he concluded that the issue of the absence of cross-examination could be addressed appropriately in his jury instruction.

[6] The principal issue on this appeal relates to the trial judge's treatment of the issue of the absence of cross-examination of the complainant at the appellant's trial. Did he err by not declaring a mistrial? Was his instruction to the jury on this issue sufficient?

[7] A second issue on the appeal relates to the trial judge's refusal to permit a proposed defence expert to testify about "false subjective memory".

B. Facts

(1) The parties and events

[8] Commencing in 2004, the appellant had a relationship and occasionally lived with the complainant's mother, S.T. In 2007, when the complainant was approximately four years old, she informed her great-aunt that the appellant had put something inside her genital area. The great-aunt informed the Children's Aid Society ("CAS"). The CAS ordered S.T. to take the complainant to a family doctor for a medical examination and to the CAS for an interview.

[9] A family doctor performed the medical examination. He reported that while he did not find signs of sexual abuse, the complainant had informed him that the appellant had touched her genital area with "something big".

[10] At about the same time, a CAS worker and a police officer interviewed the complainant with her mother present. The complainant said nothing about sexual contact or conduct.

[11] A year later, in 2008, S.T., the complainant and her siblings moved into the appellant's house in London. In July 2009, the complainant and her siblings moved to Stratford after a domestic dispute between S.T. and the appellant.

[12] Following the dispute, London CAS interviewed the complainant, then six years old, and her brother, eight years old. Both stated that the appellant had sexually abused them when they lived in his residence. On September 14, 2009, the complainant gave a videotaped statement to CAS personnel and the police. She described multiple acts of sexual abuse by the appellant.

[13] On September 30, 2009, the appellant was charged with sexual assault and sexual interference and was released on a recognizance with the condition not to see the complainant or her family (the "London charges"). Contrary to the condition of his recognizance, the appellant began to regularly visit the complainant's new residence in Stratford from Christmas 2010 onwards.

[14] On March 11, 2011, the complainant, then eight years old, informed her school teacher that the appellant was sexually abusing her. The teacher called the CAS. In the afternoon of March 11 and again on March 14, the complainant was interviewed by the police and CAS personnel. The interviews were video recorded. In the interview, the complainant described, with gestures, that the appellant had touched her genitals and other parts of her body with his penis on a number of occasions.

[15] The appellant was charged with sexual assault (the "Stratford charges").

[16] At the preliminary inquiry in July 2012, the complainant testified. She was examined and cross-examined. The appellant was committed to stand trial.

[17] Prior to the commencement of the trial in relation to the Stratford charges, the appellant was convicted and sentenced in relation to the London charges.

(2) The Trial

(a) The complainant's testimony

[18] At trial, the complainant testified in examination-in-chief about the appellant's sexual abuse in Stratford. She was 11 years old. She had testified at the London trial and at the preliminary inquiry relating to the Stratford charges.

[19] In the course of her testimony, the complainant adopted the two Criminal Code s. 715.1 videotaped statements she had given in March 2011.

[20] As the examination-in-chief progressed, the complainant became increasingly reticent and unresponsive.

[21] Early in the cross-examination, the complainant refused to answer defence counsel's questions. The court took a short break and the Crown counsel tried to persuade the complainant to participate in the cross-examination. She refused. The situation was summarized in a series of written questions from Crown counsel and written responses by the complainant:

Q. Why are you not answering Qs?

A. Because I don't want to!

Q. You testified before, why are you not able to today?

A. It's harder.

Q. Do you want to answer Qs by writing down the answer?

A. No!

Q. Why is it harder? Is it the stuff you have to talk about?

A. Yes.

[22] When court resumed, the trial judge informed the jury: "Members of the jury, I am now satisfied that [the complainant] will not respond to any more questions."

[23] Defence counsel did not seek a mistrial. However, he did request, and the Crown did not oppose, that the complainant's testimony at the preliminary inquiry be admitted as evidence pursuant to s. 715 of the Criminal Code. The trial judge so ordered. The jury was provided with an audiotape and the corresponding transcript of this evidence.

[24] At the conclusion of testimony, defence counsel sought a stay of the charge on the basis that his inability to cross-examine the complainant amounted to a denial of the accused's right to make a full answer and defence as protected by s. 7 of the Charter.

[25] The trial judge dismissed the application. In brief reasons, he said:

As I indicated this material was served on Friday, but as a result I had the opportunity to review it over the weekend. I am not convinced in the circumstances the extraordinary remedy of a stay would be appropriate and accordingly I will dismiss the motion for a stay.

[26] However, the trial judge also determined that he should provide a specific instruction to the jury about the impact of the absence of cross-examination of the complainant. He delivered this instruction:

Cross-examination is the vehicle or method by which counsel are able to test the evidence of witnesses. It is fundamental to our trial process. When a witness refuses to respond in cross-examination, as [the complainant] did in this case, defense counsel is deprived of that means of challenging her testimony. Her evidence from the preliminary hearing where she was cross-examined, was admitted into evidence because she would not respond at the trial; so you do have that cross-examination to consider.

You may wish to consider whether a full cross-examination of her at trial would have been effective in diminishing her credibility and raising a reasonable doubt. In any event, you should approach the testimony of [the complainant] carefully, keeping these matters in mind. In doing so, you should consider all the evidence and identify evidence that you do accept from other witnesses who were cross-examined that supports or confirms the evidence of [the complainant]. You may wish, but are not required, to identify such corroborating evidence before relying on a particular aspect of [the complainant's] evidence upon which she was not cross-examined.

(b) The defence's proposed expert witness

[27] At trial, the defence sought to qualify Dr. Timothy Moore, the chair of the Department of Psychology at Glendon College, York University, as an expert in the areas of memory and children's suggestibility. The defence intended to have Dr. Moore respond to a series of questions encapsulated in this question:

Is it possible for a child between the ages of 5 and 10 to have imagined abuse and incorporated imagined images of abuse into auto-biographical memory and then to develop a subjective feel of authenticity for these memories when they are a year or two older?

[28] The trial judge ruled against the admission of Dr. Moore's evidence. He said, in part:

It was my opinion upon hearing his evidence and the manner in which he advocated his views that the admission of his evidence, while being no more than helpful in alerting the jury to the vagaries of memory and the care with which they should approach the testimony of the child complainant, could potentially distract jurors from their task and distort the fact finding process.

In my view, the issues of credibility and reliability at play in this case require no specialized knowledge beyond the common knowledge and experience of jurors, properly instructed.

[29] Accordingly, the trial judge found that the proposed expert evidence did not meet the necessity component of the test for admission: see R. v. Mohan.

C. Issues

[30] The issues on appeal are:

1. Did the trial judge err in his treatment of the scenario that arose when the complainant refused to answer questions on her cross-examination?

2. Did the trial judge err by ruling Dr. Moore's proposed testimony inadmissible?

D. Analysis

(1) The cross-examination issue

[31] The appellant makes two submissions on this issue.

[32] First, the appellant contends that the trial judge should have declared a mistrial once it became clear that the complainant would not answer questions in cross-examination. The starting point for the appellant's submission is recognition that an accused's right to cross-examine witnesses is a central and very important component of an accused's constitutionally protected right to make a full answer and defence. As expressed by Major and Fish JJ. in R. v. Lyttle, at paras. 41, 43 and 44:

[T]he right of an accused to cross-examine prosecution witnesses without significant and unwarranted constraint is an essential component of the right to make a full answer and defence.

Commensurate with its importance, the right to cross-examine is now recognized as being protected by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. See Osolin, supra, at p. 665.

The right of cross-examination must therefore be jealously protected and broadly construed.

[33] The appellant contends that a proper application of Lyttle required the trial judge to declare a mistrial. The complainant was, by far, the crucial Crown witness at the trial. Once she could not be cross-examined because of her refusal to respond to defence counsel's questions, the trial continued: this continuation was unfair to the accused.

[34] For several reasons, I do not accept this submission.

[35] First, and importantly, defence counsel did not seek a mistrial when his cross-examination of the complainant was halted by her unresponsiveness. Instead, defence counsel sought and obtained the admission of the complainant's testimony at the preliminary inquiry. The other Crown witnesses then testified and defence counsel cross-examined them. When it came time for the defence case to be presented, defence counsel tried, unsuccessfully, to call expert evidence. He was also given a lengthy break before informing the court that the accused would not testify. In short, defence counsel could have asked for a mistrial. He chose not to and proceeded with the trial.

[36] Second, against the backdrop of the court's statement in Lyttle, at para. 45, that "the right of cross-examination itself is not absolute", there is a well-established test for determining whether a cross-examination of a witness impeded by unresponsiveness has such a serious impact on the accused's ability to make a full answer and defence as to render the trial unfair.

[37] The leading case is R. v. Hart, a sexual assault case involving a 12 year old complainant who was unresponsive during cross-examination. Based on the complainant's unresponsiveness, the defence sought a judicial stay or a directed verdict of acquittal. The trial judge declined to grant this relief and this decision was upheld by the Court of Appeal.

[38] After a careful review of relevant common law and Charter principles and Canadian, English and American authorities, Cromwell J.A. identified three factors that should be taken into account in determining whether the unresponsiveness of a child witness during cross examination denies an accused the right to make a full answer and defence and renders the trial unfair: (1) the reason for the unresponsiveness; (2) the impact of the unresponsiveness; and (3) possibilities of ameliorative action: Hart, at pp. 410-414; see also R. v. Cameron; and R. v. Duong.

[39] The first factor tells in favour of the appellant. The complainant's unresponsiveness was caused by the subject matter of her evidence; it was not caused by any improper defence action.

[40] The second factor favours the respondent. Obviously, the complainant was the main Crown witness. The absence of an opportunity to cross-examine her clearly removed a potentially important aspect of the defence case. On the other hand, the jury had seen the complainant testify for some time and then saw her become unresponsive. They also had the transcript and audiotape of the preliminary inquiry, where the complainant had testified, including cross-examination. They could evaluate the impact of her unresponsiveness on her credibility and reliability. Both of these aspects of her testimony were before the jury. Moreover, perhaps not surprisingly for an eight year old, her two statements to police which were admitted into evidence contained many inconsistencies.

[41] The third factor, in my view, is crucial. In Lyttle, the court said, at para. 45:

Just as the right of cross-examination itself is not absolute, so too are its limitations. Trial judges enjoy, in this as in other aspects of the conduct of a trial, a broad discretion to ensure fairness and to see that justice is done – and seen to be done.

[42] In the present case, the trial judge decided that the unresponsiveness of an 11 year old witness in a cross-examination relating to allegations about sexual abuse by her mother's boyfriend was not fatal to a fair trial. Accordingly, he did not declare a mistrial (he was not asked to). Nor did he grant the stay sought by the accused long after the complainant had finished her testimony and after many other witnesses had also testified without objection.

[43] Instead, the trial judge sought to balance and accommodate the fair trial interests of the accused and the difficult situation of the young complainant. In doing so, he was, in my view, cognizant of something else Cromwell J.A. said in Hart, at pp. 399 and 400:

Over the last 10 years, there has been growing recognition that some rules of evidence and trial procedure do not adequately address the special needs of young witnesses, particularly in sexual abuse cases.

[F]lexibility and common sense must be applied when considering the consequences of a child witness becoming unresponsive during cross-examination. It seems to me to be wrong to base the analysis on whether the unresponsiveness is the "fault" of the witness, as some of the older authorities do. While it may be appropriate to consider whether the party calling the witness and the party cross-examining have done what is reasonably possible to mitigate the difficulties of testifying, the primary focus of the analysis should be the impact of the limitation on cross-examination on the ability of the jury to assess the evidence. This analysis should have due regard to the particular circumstances of the case, viewed realistically and with common sense by standards appropriate to a witness of the age and sophistication of the child in question. In short, the assessment must be made with the flexibility and common sense appropriate to child evidence generally, not according to stereotypes or rigid rules.

[44] In the particular circumstances of this case, the trial judge was correct to conclude that the complainant's inability to participate in cross-examination was consistent with trauma and needed to be accommodated in a manner that struck a balance between the accused's right to make a full answer and defence and the societal need to protect the most vulnerable of complainants, children. On my reading of the record, the complainant was in no position to continue with cross-examination and it was not clear that she would have been able to do so in the future. In such a circumstance, declaring a mistrial would not have been appropriate, even if defence counsel had requested it.

[45] In striking the appropriate balance, the trial judge accepted the defence request that the complainant's testimony at the preliminary inquiry be admitted as evidence pursuant to s. 715 of the Criminal Code. The complainant had been cross-examined at the preliminary inquiry and defence counsel was able to make submissions about that testimony as well as the other evidence in his closing address to the jury. In addition, the trial judge specifically cautioned the jury about the absence of a cross-examination of the complainant. In my view, taking these components together, the trial judge, per Lyttle, exercised his broad discretion to ensure trial fairness in an appropriate fashion.

[46] The appellant's second, and alternative, submission on this issue is that the trial judge's specific instruction, the caution, did not go far enough. Defence counsel at trial sought a modified Vetrovec instruction in which the trial judge would tell the jury that it would be dangerous to convict the appellant on the basis of the complainant's evidence without confirmatory evidence. The appellant renews this position on this appeal.

[47] I am not persuaded by this submission. In my view, the trial judge provided a jury instruction that was explicitly directed at the complainant's evidence and arose from her refusal to be responsive to questions during cross-examination. The overall tenor of the instruction was cautionary, stating specifically that the jury "should approach the testimony of [the complainant] carefully" and look for confirmatory evidence. I see nothing wrong with the specific instruction he gave flowing from the absence of cross-examination of the complainant.

(2) The expert evidence issue

[48] The appellant submits that the trial judge erred by refusing to admit the evidence of the defence's expert, Dr. Timothy Moore. He would have testified about whether imagined images of abuse could be incorporated into autobiographical memory that a child can then subjectively believe. The complainant stated in one of the March 2011 interviews that the appellant "comes into my room in the middle of the night… I don't know what he does because I'm sleeping but all I know is he comes in my room." As well, at the preliminary inquiry, the complainant testified that she had had dreams that the appellant came into her bedroom and did bad things to her, although she claimed that she could tell the difference between when she was dreaming and when she was awake. According to the appellant, Dr. Moore's evidence was thus relevant to whether the complainant could have mistaken an experience of abuse with dreams that had been embedded as a false subjective memory.

[49] The trial judge ruled that Dr. Moore's evidence was inadmissible because it did not meet the necessity criterion and because its probative value was outweighed by its potential distracting effect.

[50] The appellant contends that the trial judge erred on both counts of his reasoning.

[51] I do not accept this submission. This court has consistently held that a trial judge's decision to admit or exclude expert evidence is entitled to deference on appellate review, unless there is an error in principle or the decision is unreasonable: see R. v. McManus, at para. 68. I see no error in the trial judge's balancing of the relevant factors in his ruling and the ultimate decision is far removed from being unreasonable.

[52] This court, per Rosenberg J.A., has upheld a trial judge's decision not to admit Dr. Moore's expert testimony in a trial with facts similar to this one: see R. v. C. (T.). I see no basis for a different decision on this appeal.

E. Disposition

[53] I would dismiss the appeal.

Released: June 13, 2017

J.C. MacPherson J.A.

I agree. R.A. Blair J.A.

I agree. Gloria Epstein J.A.