WARNING

THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

Section 110(1): Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

Section 110(2): Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

Section 110(3): A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

Section 111(1): Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Section 138(1): Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Court of Appeal for Ontario

Date: 2019-02-11

Docket: C63018

Judges: Sharpe, Benotto and Brown JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

D.H. Applicant/Appellant

Counsel

Catriona Verner, for the appellant

Joe Hanna, for the respondent

Hearing

Heard and released orally: February 6, 2019

On appeal from: the conviction entered on August 29, 2016 by Justice Wolfram Tausendfreund of the Superior Court of Justice.

Reasons for Decision

Background

[1] The appellant was convicted of two counts of rape and two counts of incest against his two sisters. He was sentenced as a youth to two years in custody and appeals from his convictions.

[2] D.H. and J.W. alleged in 2012 that they were sexually abused by multiple individuals, one of whom was their brother. The events began in the 1970s and continued for about 5 years. The appellant was between 12 to 17 years old, and both complainants were 10 to 16 years old.

[3] D.H. testified that the appellant would have sexual intercourse with her, eight to ten times a month. J.W. testified that the appellant would have intercourse with her two to three times a week in the appellant's bedroom. J.W. said that when she refused to participate, the appellant physically beat her until she submitted.

[4] The appellant moved out of the parental home in the fall of 1980. No other family members were aware of the abuse. J.W. said that she did not know that her sister D.H. had also been sexually abused by the appellant until she spoke to her mother about the subject in 1993. Her mother told her that D.H. had disclosed the sexual abuse to her. J.W. said that she too had been abused by the appellant. The complainants continued to have interaction with the appellant until disclosing the abuse to the police in December 2012.

[5] Both complainants also indicated that they were sexually abused by several others including their father and maternal grandfather. The defense called expert evidence on the issue of transference, alleging that the complainants had transferred the memory of third party abusers on to the appellant.

Section 276 Application

[6] On a s. 276 application, the trial judge permitted defence counsel to cross-examine J.W. and D.H. with respect to their father and grandfather but not with respect to other alleged assailants.

[7] The appellant alleges that the trial judge erred by limiting the s. 276 application; by misapprehending the evidence on memory transference; by relying on similar fact evidence; and by rendering an unreasonable verdict.

[8] The appellant submits that the s. 276 ruling by the trial judge with respect to the complainants' allegations against persons other than the father and grandfather should have been allowed for two reasons: (i) it was relevant to the allegation of transference; and (ii) it unduly limited cross-examination of the complainants. The appellant submits that following DH's testimony that she had made a mistake about the age that the appellant began abusing her, confusing it with the abuse of others, the trial judge should have re-visited his ruling.

[9] We do not accept this submission. The purpose of s. 276 is to guard against the so-called twin myths, that a complainant is more likely to have consented or is less worthy of belief. The criteria for admissibility of prior sexual activity is that there must be specific instances of sexual activity, relevant to an issue at trial with significant probative value that is not outweighed by the danger of prejudice to the proper administration of justice.

[10] With respect to the transference of memories, the trial judge did allow cross-examination on the allegations against the father and grandfather. The allegations against the others were dissimilar to those made against the appellant. They were isolated events that could not reasonably be mistaken for the ongoing abuse by a sibling in the family home. The allegations that the complainants would have transferred the memory of these other events to the appellant is remote. The decision of the trial judge to limit the 276 application was reasonable.

[11] The trial judge was not asked to revisit his ruling and it was not an error not to do so.

[12] We do not agree that the ruling inhibited proper cross-examination. The complainants were cross-examined on the inconsistencies in their testimony and were questioned about other abusers. It is difficult to see what further relevant evidence would have been adduced.

Memory Transference

[13] The appellant further submits that the trial judge erred in concluding that there was no evidence of transference because one of the complainants said in her police statement and at the preliminary inquiry that she was confusing the abuse of another with that of the appellant. In fact, the complainant testified that she had made a mistake in her answers to the police and at the preliminary inquiry. The trial judge referred to this inconsistency and to the evidence of the defence expert on transference. He was not prepared to find that either complainant had transposed or confused sexual abuse of the appellant with that of other parties. This does not reflect a misunderstanding of the evidence.

Similar Fact Evidence

[14] The appellant alleged that the trial judge erred in relying on the similar fact evidence because the similarities between the abuses of the sisters were generic and further he failed to consider the issue of collusion before relying on similar fact evidence.

[15] We do not accept this submission. The trial judge's reasons, read as a whole, set out the similarities and dissimilarities between the evidence of the two complainants. It was therefore open to the trial judge to rely on the similar fact evidence particularly in light of the fact that the abuse was of his sisters, in the family home which began when each turned the same age of ten. Further, the context of the alleged behaviour was similar: see R. v. B.(L), 116 CCC(3d) 481 at para 37; R. v. J.H, 2018 ONCA 245 at para 21; and R. v. S.C, 2018 ONCA 454 at para 26. The trial judge was entitled to rely on the similar fact evidence.

[16] The trial judge rejected the suggestion that the complainants colluded with one another before testifying and noted there was no evidence of collusion. He accepted the evidence that, although each was aware of the abuse of the other, they did not discuss it. The defence did not raise the issue of unconscious collusion at trial.

Reasonableness of Verdict

[17] Finally, we do not agree that the verdict was unreasonable. The trial judge addressed the inconsistencies in the complainants' evidence on direct and cross-examination and the statements to the police and the preliminary inquiry. He found that he was nevertheless able to accept their evidence. It was not necessary to resolve every inconsistency. He reviewed the evidence of the two complainants, the appellant's two ex-wives, the appellant's older brother, and the appellant himself. He accepted the evidence of the ex-wives that the appellant had made inculpatory statements to them. There was evidence for him to find the appellant guilty.

Disposition

[18] The appeal is dismissed.

Robert J. Sharpe J.A.

M.L. Benotto J.A.

David Brown J.A.