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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-04-12

Docket: C64235

Panel: Doherty, van Rensburg and Nordheimer JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

R.D. Appellant

Counsel

Alice Barton, for the appellant

Jacob Sone, for the respondent

Hearing

Heard: April 3, 2018

On appeal from: the conviction entered on January 18, 2017 and the sentence imposed on May 1, 2017 by Justice Susan E. Healey of the Superior Court of Justice, sitting without a jury.

Decision

I

[1] The appellant was convicted after a trial by a judge alone of one count of sexual assault and one count of sexual interference. Both counts arose out of the same event and the trial judge stayed the conviction on the sexual assault charge: R. v. Kienapple, [1975] 1 S.C.R. 729. The trial judge sentenced the appellant to 15 months in custody followed by one year probation. She also imposed the usual ancillary orders.

[2] The appellant appeals conviction and sentence.

II

[3] K.M., the complainant, and her mother lived briefly with the appellant in January and February 2005. K.M. was 6 years old.

[4] In October 2012, when the complainant was just short of her 14th birthday, she told her counselor that she had been sexually assaulted on one occasion by the appellant. Charges were laid. K.M. was 18 years old when she testified.

[5] In her evidence, K.M. described the assault as occurring on a specific day when K.M.'s mother, at the last minute, asked the appellant to look after K.M. for the day. He initially resisted the request, but later relented and agreed to look after K.M.

[6] K.M. testified that at some point during that day, the appellant told her to remove her clothing, rubbed her breasts with his hand, and inserted his fingers into K.M.'s vagina while he rubbed his penis. K.M. said she struggled to get away, but the appellant pressed her against the bed so she could not move. The assault stopped when the appellant heard a car door slam. It turned out that K.M.'s mother had returned home. The appellant told K.M. to get dressed.

[7] By coincidence, K.M.'s mother had decided to terminate her relationship with the appellant that day. She was coming back to the apartment to get K.M. and move out. They left the apartment that afternoon. K.M. did not see the appellant again until these court proceedings many years later.

[8] In the course of her examination-in-chief, K.M. testified that she first complained about the sexual assault when she told her counselor. K.M. was not asked in-chief about the reason for counseling.

[9] In cross-examination, K.M. was asked about the problems she was having that led to the counseling. She acknowledged that she had many emotional and behavioural problems as a teenager, including depression. She testified that those problems manifested themselves in various forms of misbehaviour, including self-abuse, difficulties with the law, low-functioning in school, and alcohol and drug abuse. In response to questions on cross-examination, K.M. indicated that her emotional and behavioural problems as a teenager were caused by the sexual abuse she suffered at the hands of the appellant. She testified that she thought about it a lot and it upset her very much.

[10] The defence solicited evidence about K.M.'s behavioural problems as a teenager for two reasons. First, the defence argued that K.M. had invented the allegation of sexual abuse as an excuse for her misbehaviour as a teenager. Second, the defence submitted that K.M.'s conduct, which included criminality and dishonesty, placed her entire credibility in doubt.

[11] The appellant did not testify. Instead, counsel argued that K.M.'s evidence was not sufficiently credible and reliable to carry the full weight of the Crown's burden.

[12] In the course of argument, the trial judge raised the possibility that K.M.'s behaviour as a teenager and her explanations for that behaviour could assist in determining whether the Crown had proved the allegation beyond a reasonable doubt. The trial judge observed that the behavioural problems exhibited by K.M. were known to be associated with persons who had been victims of sexual assault. In the trial judge's view, she did not need expert evidence to find that "the behaviours exhibited by her [K.M.] may arise from being a victim of sexual assault".

[13] We agree that the trial judge did not need expert evidence to find that K.M.'s conduct as a teenager could have been the product of various childhood traumas, including sexual abuse. K.M. testified that the two were connected. The trial judge was entitled to take into account K.M.'s evidence and common knowledge when addressing the defence argument that the allegation of sexual abuse was a falsehood created by K.M. as an excuse for her misbehaviour as a teenager. The trial judge could, in considering and rejecting the defence position, have regard to other possible explanations for K.M.'s behaviour, including her allegation that she had been sexually assaulted as a young child: see R. v. R.O., 2015 ONCA 814, at paras. 40-43.

[14] The trial judge, however, went further and found an actual connection between the complainant's psychological and emotional problems as a teenager and the alleged sexual assault when she was six years of age. In finding that connection, the trial judge relied on K.M.'s evidence that she believed her subsequent problems to be a result of the earlier sexual abuse, and what the trial judge concluded was the absence of any other explanation for K.M.'s conduct as a young teenager.

[15] The trial judge ultimately found that the connection between the sexual abuse, and K.M.'s subsequent emotional and psychological problems, provided evidence that supported the Crown's case, and enhanced the reliability of K.M.'s testimony that she had been abused by the appellant. The trial judge said:

She disclosed the incident when she did for the sole reason that she testified to – as she matured, she understood the import of her memory that troubled her greatly, she was being asked in counseling about what was troubling her and she let it be known. Those memories continue to cause her ongoing distress, led to drug and alcohol abuse, and interfered with her ability to thrive academically. There is no other explanation for her behaviour that makes sense and it goes well beyond the typical adolescent struggles. On their own, K's psychological and behavioural difficulties would not result in a conviction in this case, but they are part of the evidence that bolsters the reliability of her evidence of being assaulted.

[16] We are satisfied that the trial judge erred in using the evidence of K.M.'s emotional and psychological problems as a teenager to "bolster the reliability of her evidence of being assaulted" for two reasons. First, in finding that the evidence in respect of her emotional and psychological problems supported her claim that she had been assaulted, the trial judge placed significant weight on the absence of any other explanation in the evidence for the complainant's emotional difficulties. With respect, this weight was misplaced. The Crown never suggested as part of its case that there was any link between the complainant's emotional and psychological problems and the sexual assault when she was six years old. The possibility of that connection was not explored in the evidence. In fact, the possible connection first appeared in the trial judge's questions during closing argument.

[17] On this evidentiary record, it was speculation to conclude, as the trial judge did, that there was no explanation for K.M.'s emotional and psychological problems as an adolescent other than the explanation K.M. offered in cross-examination.

[18] Second, we accept counsel for the appellant's submission that the trial judge's reasoning reveals a fatal circularity or "boot strapping". The trial judge used her acceptance of K.M.'s evidence that the sexual assault by the appellant precipitated her subsequent emotional and behavioural problems to support the reliability of K.M.'s assertion that the appellant sexually assaulted her. In effect, the trial judge used her acceptance of K.M.'s testimony that the sexual assault explained the emotional problems to "bolster the reliability" of K.M.'s evidence that she was sexually assaulted.

III

[19] The appellant argued that if the improper use of K.M.'s evidence of her emotional and psychological problems as a teenager is removed from the evidentiary mix, there is no reasonable basis upon which the trial judge could have convicted. We do not agree. K.M. testified. A reasonable trier of fact could convict based on her evidence.

[20] We would allow the appeal, quash the conviction, set aside the conditional stay, and order a new trial on both counts.

Released: April 12, 2018

Doherty J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.