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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 of Appeal for Ontario
Date: 2019-02-21
Docket: C64842
Panel: MacPherson, Sharpe and Tulloch JJ.A.
Between
Her Majesty the Queen Respondent
and
R.D. Appellant
Counsel
R.D., appearing in person
Zachary Kerbel, duty counsel
Andrew Hotke, for the respondent
Heard: February 12, 2019
On appeal from: the conviction entered on April 28, 2017, and the sentence imposed on October 25, 2017, by Justice Robert Charney of the Superior Court of Justice.
Reasons for Decision
[1] The appellant appeals his conviction on three grounds:
That the trial judge erred in declining to admit the defence expert evidence on the issue of recovered memory;
That the trial judge erred in relying on jurisprudence from B.C. in his consideration of recovered memory; and
The trial judge erred in his treatment of the complainant's evidence by dismissing numerous minor inconsistencies and one major inconsistency rendering the verdict unreasonable.
[2] We do not agree.
[3] With respect to the expert evidence, the defence sought to call an expert to give evidence in the area of memory science and the cognitive and social psychological aspects of human memory. The intent of the evidence was to address concerns regarding the reliability of the complainant's evidence. The trial judge rightfully excluded this evidence on the basis that it would impermissibly trench on the province of the fact finder by commenting directly on the credibility and reliability of the complainant.
[4] Furthermore, the trial judge noted that all the concerns raised in the expert's report regarding the potential frailties of the complainant's memory could be raised by defence counsel in his closing submissions. As such, the expert evidence did not meet the threshold requirement of necessity. We agree with this finding.
[5] On the second ground raised by the appellant, we would not accept this argument. When analyzing the evidence of the complainant, the trial judge assessed it within the context of his age at the time of the incident. He made specific findings with respect to the circumstances surrounding the disclosure of the sexual assault by the complainant, as well as the complainant's memory, based on other corroborative evidence adduced at trial.
[6] In very detailed and comprehensive reasons, the trial judge found the complainant to be a compelling and straightforward witness. The appellant did not testify. The trial judge noted that the complainant did not attempt to exaggerate his memories, and his evidence about the incident in the shower included as much detail as one could expect from a person who underwent a brief, but troubling and confusing experience as an eight year old. The trial judge noted that the complainant's memories in relation to the surrounding circumstances of the incident were generally consistent with those of the other witnesses.
[7] With respect to the third ground, for the reasons given above, we would not accept the appellant's argument. The trial judge specifically noted the areas of concern and the inconsistencies with the complainant's evidence. He assessed these concerns within the totality of all the evidence and was satisfied beyond a reasonable doubt of the guilt of the appellant.
[8] One aspect of the complainant's evidence that gave the trial judge "pause" was the complainant's suggestion during the preliminary hearing that he remembered he could feel the appellant's erect penis against the area of his right hip. The complainant confirmed this evidence when asked about it at trial. The trial judge specifically commented that this evidence seemed unlikely to him given the height difference between the appellant and the complainant when he was eight years old. However, when viewed within the context of the complainant's evidence as a whole, the trial judge concluded that the incongruity was not sufficient to raise a reasonable doubt as to the core allegation. We agree with the trial judge that this inconsistency does not detract from the complainant's unshaken testimony on the central allegation about the incident in the shower.
[9] In all the circumstances the appeal is dismissed.
"J.C. MacPherson J.A."
"Robert Sharpe J.A."
"M. Tulloch J.A."
