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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-11-20
Docket: C63687
Panel: Hoy A.C.J.O., Doherty and Zarnett JJ.A.
Between
Her Majesty the Queen Respondent
and
W.C.H. Appellant
Counsel: Joseph Heller, for the appellant Joanne Stuart, for the respondent
Heard: November 12, 2019
On appeal from: the conviction entered by Justice John A. Desotti of the Superior Court of Justice on December 11, 2015, with reasons reported at 2015 ONSC 7729.
Reasons for Decision
[1] The appellant was charged with sexual offences against the complainant, A.K., his then spouse, and against his children. He was acquitted of the offences against his children but convicted of a single incident of sexual assault of the complainant. He received a conditional sentence of imprisonment of 21 months.
[2] He appeals against conviction only. For the reasons that follow, the appeal is dismissed.
[3] The appellant was tried by judge alone, more than 16 and one half years after the offence occurred. The appellant did not testify at trial.
[4] The trial judge accepted the complainant's evidence that: the appellant forced her to have vaginal intercourse while she was recovering from a hysterectomy; the intercourse was very painful; after, she experienced bleeding and, later that day, noticed feces coming out of her vagina; and she required multiple surgeries to repair the resultant hole between her vagina and her bowels and to repair scar tissue in her vagina.
[5] After the trial judge found the appellant guilty of sexually assaulting the complainant, and before sentencing, the appellant filed an application seeking an order re-opening the trial and a mistrial based on fresh evidence. The proposed fresh evidence consisted of Day Timer entries the appellant found before his preliminary inquiry. They appear to have been authored by the complainant. They suggest that the hysterectomy may have occurred about ten months later than she testified it had occurred, and that she may have been wrong about how quickly following the hysterectomy the assault occurred. The timeframe in the indictment encompasses both dates.
[6] The trial judge dismissed the appellant's application. While he found that the proposed fresh evidence could have been available at trial had the appellant exercised due diligence, he did not rely on this in dismissing the application. The trial judge also found that the proposed fresh evidence was relevant and credible. His decision turned on his assessment of whether, if believed, and when taken with the other evidence at trial, the proposed fresh evidence could reasonably be expected to have affected the result. He found that the impact of the proposed fresh evidence was "inconsequential and not a reason to question the finding of the accused's guilt beyond a reasonable doubt". He further concluded that the evidence of the change of the date of the hysterectomy would not have impacted negatively on the credibility of the complainant, A.K., as she described her sexual assault of the accused, W.C.H., after her hysterectomy and the many problems occasioned thereafter because of the sexual assault.
[7] The appellant argues that, in assessing the cogency of the proposed fresh evidence, the trial judge erred in principle by only considering whether the proposed fresh evidence impacted negatively on the credibility of the complainant and failing to consider whether the proposed fresh evidence impacted negatively on the reliability of the complainant's evidence. He submits that the proposed fresh evidence impacts negatively on the reliability of the complainant's evidence, that it could have reasonably affected the verdict, and that a new trial must be ordered.
[8] The appellant concedes that the trial judge's specific determination that the proposed fresh evidence would not have impacted negatively on the credibility of the complainant is entitled to deference. He does not challenge the reasonableness of that finding.
[9] We are not persuaded that the trial judge erred in principle in his assessment of the cogency of the proposed fresh evidence. He correctly considered whether the proposed fresh evidence, if believed, and when taken with the other evidence at trial, could reasonably be expected to have affected his verdict. He concluded that it would not.
[10] The trial judge was alive to the issue of the reliability of the evidence of all the complainants about events that occurred many years before. Indeed, he acquitted the appellant of the counts with respect to his children because of his concerns with the reliability of their testimony, even though he had no concerns with their credibility.
[11] In contrast, the trial judge found that the complainant "was a credible and reliable witness". As noted above, in dismissing the appellant's application, the trial judge found that the impact of the proposed fresh evidence was "inconsequential and not a reason to question the finding of the accused's guilt beyond a reasonable doubt". The fact that the trial judge did not specifically mention the impact of the proposed fresh evidence on the reliability of the complainant's core assertion that the appellant assaulted her while she was recovering from her hysterectomy does not take away from that finding.
[12] Moreover, the trial judge reasonably concluded that the proposed fresh evidence was not material to the ultimate finding of guilt. The cogency inquiry must be done in the context of the totality of the evidence led at trial and having regard to the positions advanced at trial: R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 103. In his very brief cross-examination of the complainant, the appellant did not challenge the complainant's testimony that he had intercourse with her following her hysterectomy, before the doctor had advised it was safe to do so. The thrust of the cross-examination was to attempt to cast doubt that the post-hysterectomy intercourse was non-consensual:
Q. And this would've been after you'd had hundreds if not thousands of sexual encounters with W.C.H. and bore him three children. Is that correct?
A: Yeah.
[13] The specific date of the forced intercourse was never an issue at trial. The complainant was not asked a single question in cross-examination about the timing of the forced intercourse. In this case, no part of the defence on this count turned on when the forced intercourse occurred.
[14] Further, there is nothing in the proposed fresh evidence that suggests that the forced intercourse did not occur while the complainant was recovering from her hysterectomy. In fact, as the trial judge noted in ruling on the application, the entries in the Day Timer are consistent with her evidence that she experienced complications in recovering from her hysterectomy. This lends some support to her claim that the forced intercourse caused the injuries she described.
[15] The trial judge's decision involved the exercise of judicial discretion and is entitled to significant deference on appeal: M.G.T., at para. 55. We are not persuaded that there is any basis to interfere with his decision dismissing the appellant's application to permit a post-verdict re-opening of the defence case.
[16] Accordingly, the appeal is dismissed.
"Alexandra Hoy A.C.J.O."
"Doherty J.A."
"B. Zarnett J.A."

