Publication Restriction 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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: 20200219 Docket: C67006

Lauwers, Trotter and Fairburn JJ.A.

Between:

Her Majesty the Queen Respondent

and

J.J. Appellant

Counsel:

Jaime Mor, for the appellant Nicolas de Montigny, for the respondent

Heard and released orally: February 13, 2020

On appeal from the conviction entered on June 28, 2018 by Justice Jon-Jo Douglas of the Ontario Court of Justice.

Reasons for Decision

[1] This is an appeal from conviction on one count of sexual assault. In arriving at his conclusion on the appellant’s guilt, the trial judge is said to have erred in his use of transcripts from the complainant’s police statement and preliminary inquiry evidence.

[2] Those transcripts had been used during the cross-examination of the complainant to confront her with alleged inconsistencies between what she had previously said and what she testified to at trial. This was done in an effort to impeach her credibility. In re-examination, the Crown put other passages from the transcripts to the complainant in an effort to neutralize the strength of the alleged prior inconsistencies by showing certain consistencies between what the complainant had previously said and her viva voce evidence.

[3] The parties offered to assist the trial judge by giving him copies of the transcripts of the prior police statement and preliminary inquiry evidence. Somewhat unusually, the transcripts got marked as numbered exhibits at trial. Despite this fact, counsel were clear that the sole purpose for which the transcripts were being provided to the trial judge was to assist him in recalling the portions of transcript that had been put to the complainant during her viva voce evidence. This understanding was subsequently confirmed with the trial judge in writing from counsel, when they specifically identified for his consideration the relevant page references from the transcript that had been put to the complainant when she testified at trial.

[4] The reasons for judgment make clear that, rather than staying focused on what had been put to the complainant at trial, the trial judge considered the entirety of the transcripts to assist in his reasoning process. Accordingly, the respondent fairly acknowledges that the transcripts were used for a purpose other than that for which they were filed. Despite having used the transcripts for a different purpose than that agreed to by counsel at trial, the respondent argues that the trial judge did not use them for a legally improper purpose.

[5] We do not agree.

[6] The transcripts – in their entirety – were used by the trial judge as an essential component of his credibility assessments. He quoted from those transcripts at length, specifically numerous passages that were never put to the complainant during her viva voce evidence. He then observed that the “three interrogations” of the complainant were “internally consistent”. He gave this as a reason for preferring the complainant’s evidence and rejecting the evidence of the accused.

[7] This improper use of the prior statements rendered the trial fundamentally unfair. In these circumstances a new trial is required.

[8] The appeal is allowed, and a new trial is ordered.

“P. Lauwers J.A.”

“G.T. Trotter J.A.”

“Fairburn J.A.”