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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-11-20

Docket: C63543

Panel: Strathy C.J.O., Doherty J.A. and McCombs J. (ad hoc)

Parties

Between

Her Majesty the Queen Appellant

and

S.M. Respondent

Counsel

Nancy Dennison, for the appellant

William Thompson and Samara Secter, for the respondent

Hearing

Heard: November 8, 2017

On appeal from: Acquittals entered by Justice Richard T. Knott of the Ontario Court of Justice on March 2, 2017.

Reasons for Decision

[1] Charges and Acquittal

The respondent was charged with sexual assault and related offences. The trial judge acquitted on all counts. The Crown appeals.

[2] The Complainant's Evidence

E.M., the complainant, described two sexual assaults committed by the respondent, her biological father. The incidents allegedly occurred about two weeks apart, some 10 or 11 years earlier when E.M. was 10 or 11 years old.

[3] Background and Relationship

On the evidence, E.M. and the respondent had no relationship for the first 10 years of E.M.'s life. Eventually, she learned of her father and was introduced to him. Her mother arranged for E.M. to spend time with the respondent on alternate weekends over several weeks. E.M. testified that she was sexually assaulted on two separate occasions during those visits.

[4] Uncertainty in Evidence

There was uncertainty in the evidence, explained in part by the fact that the relevant events occurred about 11 years earlier, about the timing of the various visits by E.M. to the respondent, and the overall time period during which those visits occurred.

[5] Critical Temporal Inconsistency

E.M. testified that both sexual assaults occurred after her birthday, which was January 12th when she turned 11, but before the respondent suffered a serious eye injury, requiring him to wear a patch over one eye. Independent evidence showed that the respondent suffered the eye injury on January 6, 2006. Consequently, the sexual assaults could not have occurred before the eye injury on January 6th, but after E.M.'s birthday on January 12th. This part of E.M.'s evidence was clearly wrong.

[6] Respondent's Evidence

The respondent did not testify.

[7] Treatment of Temporal Evidence at Trial

On appeal, the Crown and the respondent agree that E.M.'s evidence placing the alleged assaults between the date the respondent suffered an eye injury and her 11th birthday could not have been accurate. Both also agree that this feature of E.M.'s evidence had to be taken into account in assessing the overall reliability of her evidence. The respondent argued that this was a crucial feature of E.M.'s evidence that spoke strongly against the reliability of her evidence. The trial judge understood this submission and took this aspect of E.M.'s evidence into account in assessing the reliability of her evidence (see reasons, at p. 16).

[8] Crown's Submission on Appeal

The Crown submits, however, that the trial judge went further than using this part of E.M.'s evidence in assessing the reliability of her testimony. The Crown argues that the trial judge treated the timeframe alleged in the indictment (and later amended) as an essential element of the offence, essentially part of the actus reus, to be proved beyond a reasonable doubt.

[9] Trial Judge's Treatment of Timeframe

At least three comments in the trial judge's reasons support the Crown's position that the trial judge did treat the time within which the offences occurred as an essential element of the offence (see reasons, at pp. 2, 13 and 19). For example, at p. 19, the trial judge said:

I cannot, with any certainty, and certainly not beyond a reasonable doubt, say [in] what timeframe the incident could have occurred.

[10] General Rule on Timeframe

As a general rule, the Crown is not required to prove beyond a reasonable doubt that the alleged offence occurred within the timeframe set down in the indictment: see R. v. B. (G.), 56 C.C.C. (3d) 200, at 215-16 (SCC); Criminal Code, s. 601(4.1).

[11] Nature of the Charges

There is nothing inherent in the nature of the charges brought against the respondent that would make the time at which those offences occurred an essential element of the offence. For example, this is not a case in which the evidence raised the possibility that if the acts were committed at a certain time, they were no longer criminal because of the age of the complainant. The conduct alleged in this case remained criminal regardless of when it occurred.

[12] Fairness and Prejudice to the Accused

The respondent contends that this case falls within that category of cases in which fairness to the accused demands that the Crown be required to prove that the offence occurred within the timeframe alleged in the indictment. Broadly speaking, these are cases in which an accused can demonstrate a prejudice to his or her ability to properly defend the case flowing from the Crown's attempt to prove that the offences occurred at some time outside of the time period alleged in the indictment.

[13] No Prejudice to Defence

We do not accept that the respondent was prejudiced in the relevant sense by a finding that the assaults occurred outside of the timeframe alleged in the indictment. The respondent had clear notice of the legal and factual nature of the allegations and the factual context in which they were said to have occurred. The Crown maintained that the respondent sexually assaulted his daughter on two occasions during the weekend visits that occurred on alternate weekends over several weeks. The actual dates of the alleged offences, or the timeframe within which they occurred, added nothing that would assist the respondent in identifying the allegations.

[14] Defence Strategy

Nor did the timeframe have anything to do with the defence advanced by the respondent. Although the respondent did not testify, it was the defence position that the alleged assaults did not occur and that E.M. was not a reliable witness. That defence in no way depended on, or took its shape from, the timing of the alleged sexual assaults.

[15] No Alibi Defence

This is not a case in which an accused advanced an alibi-like defence in response to the timeframe alleged by the Crown in the indictment, only to have the Crown argue for a conviction based on events outside of the timeframe. There is simply no reason to think that the defence advanced here hinged in any way on the timeframe alleged in either the original indictment or the amended indictment.

[16] Amendment to Indictment

In a related argument, the respondent argues that he was prejudiced by the amendment to the indictment at the end of the Crown's case. The Crown appreciated that the complainant's evidence as to the timeframe could not be correct. For reasons that are not entirely clear, the Crown sought to amend the indictment to limit the timeframe alleged to the period before the respondent suffered his eye injury. The trial judge amended the indictment.

[17] Crown's Election

The respondent argues that the Crown effectively elected to narrow the allegation and that the defence is entitled to rely on that election in defending against the charge.

[18] Unfairness Analysis

This argument is essentially a reformulation of the unfairness argument. The question remains – can the respondent demonstrate any unfairness to the defence should the Crown be allowed to rely on events outside of the timeframe alleged in the indictment as amended? As pointed out above, the defence did not turn on the timeframe in the indictment. It turned on the reliability of E.M.'s evidence. Neither the substance of the respondent's argument that her evidence was unreliable, nor the potential force of that argument, was affected by the amendment to the indictment. Whatever the timeframe alleged in the indictment, it was clear that E.M.'s recollection as to when the alleged assaults occurred was in error. The impact of that error on the reliability of her evidence had nothing to do with the timeframe alleged in the indictment.

[19] Conclusion on Timeframe Requirement

We are satisfied that the Crown did not have to prove that the alleged offences occurred within the timeframe alleged in the indictment. Having regard to the reasons as a whole, we conclude that the trial judge did treat the timeframe alleged in the indictment as an essential element of the offence. The final words in his reasons make that clear:

I cannot say that the incidents occurred between November 25, 2005 and January 5, 2006. The accused will be found not guilty.

[20] Error in Law and New Trial

The trial judge erred in law in requiring the Crown to prove beyond a reasonable doubt that the offences occurred within the timeframe alleged in the indictment. The error was crucial. The trial judge expressed concerns about the reliability of E.M.'s evidence. The concerns were based in part on her clearly erroneous recollection of when the offences occurred. The trial judge did not, however, come to any conclusion as to the reliability of E.M.'s evidence, but instead wrongly decided the case on the ground that the Crown had failed to prove beyond a reasonable doubt that the offence occurred within the timeframe alleged in the indictment. It may well be that a trial judge would find E.M.'s evidence sufficiently reliable to satisfy the Crown's burden of proof. There must be a new trial on all charges.

[21] Disposition

The appeal is therefore allowed and a new trial ordered.

"G.R. Strathy C.J.O."

"Doherty J.A."

"D. McCombs J."