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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-01-26

Docket: C58815

Panel: Weiler, Pepall and Miller JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

R.B. Appellant

Counsel

For the Appellant: Jill D. Makepeace

For the Respondent: Philippe G. Cowle

Hearing

Heard: January 9, 2017

On appeal from: The conviction entered on March 6, 2014 by Justice Patricia C. Hennessy of the Superior Court of Justice.

Endorsement

Facts and Grounds of Appeal

[1] The appellant was convicted of sexual assault and invitation to sexual touching on K.O., the daughter of his former girlfriend.

[2] He appeals his conviction and raises two broad grounds of appeal. The first ground of appeal alleges that the trial judge interfered with defence counsel's cross-examination of the complainant such that she diverted counsel from pursuing relevant lines of inquiry and impeded the dynamic flow. The second ground of appeal alleges that the trial judge's approach to the case in her reasons was unbalanced, favoured the Crown and undermined trial fairness. She failed to resolve conflicts between the complainant's evidence and the evidence of defence witnesses on material issues and she failed to meaningfully scrutinize aspects of the complainant's evidence.

[3] We rejected these contentions and we did not call upon the Crown to respond. Accordingly, we dismissed the appeal with reasons to follow shortly. These are those reasons.

(1) The Trial Judge's Instructions Did Not Interfere with the Ability to Cross-Examine

[4] There is a strong presumption that a judge has not unduly intervened in a trial. The question of whether the interventions led to an unfair trial is undertaken from the perspective of a reasonable observer who was present throughout the trial: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at paras. 29-30. Intervening frequently, without more, does not lead to a miscarriage of justice: R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.). The presence or absence of objections from defence counsel to the judge's interventions is a relevant factor, although it is not determinative: R. v. Lahouri, 2013 ONSC 2085, 280 C.R.R. (2d) 249 (S.C.), at para. 10.

[5] A full review of the cross-examination leads us to conclude that defence counsel conducted a thorough cross-examination. Defence counsel at trial never complained that he was prevented from exploring a relevant issue, nor does the transcript suggest such interference.

[6] Although the appellant suggests that the judge "placed the authority of her office on the side of the prosecution", the record reflects no such error. The judge did not engage in questioning of the witness, nor take on the role of counsel as discussed in Lahouri, at para. 8.

[7] The appellant's objections focus on three areas of cross-examination of the complainant. The first relates to the complainant's relationship with her mother. Given the fact that the complainant, then a teenager, became visibly upset and needed to slow down and gain control of her emotions, the trial judge's intervention was appropriate. It was necessary to have clarity in the evidence and the trial judge was entitled to ascertain how the complainant's relationship with her mother was relevant and the trial judge explained that she was prepared to allow counsel to put propositions to the complainant so that they could later be contradicted by other witnesses. Defence counsel never objected to this approach, nor did he suggest it would prevent him from eliciting relevant evidence.

[8] The trial judge also interjected to ensure that the witness listened to the question and did not begin to answer the question before it had been fully put. For example, the trial judge was entitled to ensure that the question put in cross-examination by defence counsel about a conversation the complainant had with her mother, that the complainant began to answer before he finished, related to a conversation in the presence of Vanessa Legault, a friend of the mother. The need for the complainant to slow down and wait for the questions is further borne out by defence counsel himself saying to the complainant at a later point, "Maybe you just want to wait until I ask the question, okay?".

[9] A third area of complaint relates to questions about whether the complainant spat out the appellant's ejaculate into the toilet or the sink or the bathroom after he forced her to perform fellatio on him in the bedroom when she was between the ages of four and six. The complainant testified that the appellant had told her to "swallow it" but that she said she had to go to the bathroom and had spat it out. She further testified in her evidence in chief that she was going to try spitting in the toilet but then had stood on something that enabled her to spit into the sink. In her cross-examination, the complainant said she had spat the ejaculate into the toilet too. She said, "It was kind of like I was spitting it out in the toilet and then I was kind of spitting it out and like throwing up kind of. So I was getting ready to swallow it and then I started spitting it a little bit in the toilet and then I run – and then I went to the sink." Defence counsel put to the complainant that she had not said she spat into the toilet in her evidence in chief. She agreed. Defence counsel then followed up with further questioning on whether she had ever spat into the toilet, on what occasion, and whether it was after the first time she spat in the toilet. After this the trial judge intervened telling defence counsel that his questions were not helpful to her assessment of the credibility of the complainant and that she worried his questions were to throw the witness off. The trial judge asked counsel the purpose of the questioning and he indicated that it went to credibility, the unreliability of her memory, and whether she was making the incident up. The trial judge told him he could put a proposition to the witness and if it was contradicted by the evidence he could go on and make it a subject of argument. Defence counsel agreed that he did not need any further evidence on this point.

[10] In re-examination, the Crown showed the complainant her June 9, 2010 statement to the police which indicated that she told the officer, "I just spit it out into the sink or the toilet or something."

[11] A judge may intervene in the proceedings for numerous reasons. For example, a need to control the court's process, a need to focus the questions being asked so that the evidence is received in a clear and cohesive manner, a need to avoid repetitive or irrelevant questions. The trial judge has a role to play in ensuring that a complainant, like any other witness, is treated fairly. The examples of the trial judge's interjections discussed above and the other interjections by her show that she was engaging in that task. The appellant has not identified any relevant issue that he was prevented from exploring. A reasonable observer would not have concluded from the trial judge's interjections that they rendered the appellant's trial unfair.

(2) The Trial Judge's Reasons Were Careful, Detailed, and Balanced and Did Not Reflect an Uneven Standard of Scrutiny

[12] As explained by this court in R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39, citing R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, the "uneven scrutiny argument" is a difficult argument to make successfully, first, because credibility findings are the province of the trial judge and attract a very high degree of deference on appeal and secondly, such arguments are seen by appellate courts with skepticism and as a veiled invitation to reassess the trial judge's credibility determinations.

[13] The trial judge gave lengthy, detailed and careful reasons for her findings. On the specifics raised by the appellant, it is clear that the trial judge viewed the evidence of Vanessa Legault as being deeply flawed and incapable of undermining the complainant's evidence. As for the one time conversation with Ashley Smith four years earlier in which it was alleged that the complainant said she had been raped at knife point, the trial judge was not required to make an express finding in this regard; it is clear that she did not place much weight on this alleged conversation. Having regard to the evidence of the complainant's statement to her step-mother, her statement to the police, and her sworn testimony, the trial judge was entitled to do so. Regarding the appellant's eye colour and an incident in which she was struck with a TV antennae, the findings made by the trial judge were open for her to make.

[14] We conclude that the trial judge's reasons were balanced and did not undermine the fairness of the trial. We reject this ground of appeal.

[15] The appeal is dismissed.

Karen M. Weiler J.A.

S.E. Pepall J.A.

B.W. Miller J.A.