Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20211125 DOCKET: C67671

Strathy C.J.O., Hourigan and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

L.C. Appellant

Counsel: William R. Gilmour, for the appellant David Friesen, for the respondent

Heard: November 22, 2021

On appeal from the conviction entered on May 1, 2019, by Justice Erika Chozik of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

I. Introduction

[1] The appellant was charged with sexual interference and sexual assault. The three complainants, who are sisters, are the nieces of the appellant. They alleged that the appellant committed the sexual offences between 1993 and 2000, when they were each between the ages of four and nine.

[2] The trial judge found the appellant guilty of one count of sexual assault and one count of sexual interference. The sexual assault charge was stayed pursuant to the Kienapple principle: Kienapple v. R., [1975] 1 S.C.R. 729. The trial judge sentenced the appellant to nine months’ imprisonment.

[3] In her reasons for judgment, the trial judge focused on the issue of “collusion”. She found that there had been “far more discussion of the details of the allegations” between two of the nieces than either was prepared to admit in their testimony. These discussions gave rise to a “real concern that the similarities of their accounts are the product of collusion, whether conscious or unconscious.” [1] The trial judge was thus unable to find beyond a reasonable doubt that the appellant sexually assaulted or interfered with either of these two nieces.

[4] Rejecting the appellant’s evidence as “unreliable and suspect”, the trial judge ultimately convicted the appellant of the offences committed against the third niece. The third niece shared her memories of the appellant’s sexual offences via a text to one of her sisters, before either of her two sisters told her about their experiences with the appellant. Therefore, the trial judge found that the third niece’s memory was not tainted.

[5] The appellant appeals his conviction. He does not take issue with any aspect of the trial or with the trial judge’s reasons for judgment.

[6] The appellant’s sole ground of appeal is based upon proposed fresh evidence in the form of two affidavits, submitted by his sister, who is the aunt of the three complainants. The appellant argues that the fresh evidence directly contradicts the credibility of the third niece. Accordingly, he seeks a new trial.

[7] For the following reasons, we are not persuaded by the appellant’s arguments and refuse to admit the fresh evidence. Consequently, we dismiss the appeal.

II. Proposed Fresh Evidence

[8] The appellant’s sister swore two affidavits: one dated October 22, 2019 and the second dated November 21, 2020. In her first affidavit, the appellant’s sister claimed that the third niece had told her that she discussed the appellant’s sexual offences with her two sisters much earlier than the third niece indicated at trial.

[9] The facts surrounding the alleged admission of collusion are as follows. The appellant’s sister stated that on May 18, 2017, the day before the appellant was charged, she was working at the family business and observed a meeting between the three nieces and their father. After the meeting, the three nieces and their father left the premises and seemed upset. The appellant’s sister said she called the third niece later that evening to ask if she was all right. The third niece shared that there were “serious allegations about a member of the family” and the appellant’s sister guessed that the member of the family was the appellant.

[10] The appellant’s sister swore that she spoke with the third niece again on May 19, 2017. According to the appellant’s sister, the third niece told her that two to three weeks earlier, the three complainants had spent the evening together drinking wine and had discussed the appellant’s sexual offences. Finally, the appellant’s sister said that she did not offer this evidence earlier because she was not aware that collusion between the three sisters was a relevant issue until she read the trial judge’s reasons for decision.

[11] In her second affidavit, dated some thirteen months after the first, the appellant’s sister submitted additional evidence, claiming that “we kind of rushed the [first] affidavit” and that the purpose of the second affidavit was to “fill in the blanks”. According to the appellant’s sister, the third niece told her on May 19, 2017 that “she couldn’t remember anything” about the appellant’s sexual offences. The appellant’s sister then asked the third niece “why, if she couldn’t remember anything, she wanted to put [the appellant] in jail”.

[12] The appellant argues that his sister’s fresh evidence directly calls into question the third niece’s credibility on a key issue of evidence – that is, the existence of collusion between the third niece and her two sisters. In essence, the appellant submits that the conversation that the three nieces allegedly had over wine, two to three weeks before police charged him, tainted the third niece’s memory.

III. Analysis

[13] This court has broad discretion to receive fresh evidence on appeal where “it considers it in the interests of justice”: Criminal Code, R.S.C. 1985, c. C-46, s. 683(1). The Supreme Court of Canada established the test that governs the admission of fresh evidence in Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775. This court has since reformulated the Palmer test: R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92. The inquiry consists of three questions:

1. Is the evidence admissible under the operative rules of evidence? (admissibility criterion)
2. Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict? (cogency criterion)
3. What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence? (due diligence criterion)

[14] The appellant submits the fresh evidence to demonstrate that the third niece, a Crown witness, made a prior inconsistent statement. The respondent concedes that the proposed fresh evidence meets the admissibility criterion.

[15] The cogency criterion consists of three prongs: Truscott, at para. 99. In considering cogency, this court asks the following questions:

1. Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial?
2. Is the evidence credible in that it is reasonably capable of belief?
3. Is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result?

[16] As the respondent acknowledges, the adduced evidence is relevant because it bears on the decisive issue of the third niece’s credibility. The trial judge’s finding that the third niece was credible was central to the ultimate conviction of the appellant.

[17] In our view, the proposed fresh evidence is not credible for the following reasons. First, the appellant’s sister was less than forthright in her affidavits. During her cross-examination, she declared that she was able to submit her second affidavit over a year after the first affidavit because she had a “very good memory”. Yet she failed, in either affidavit, to mention a text message that she had sent to the three complainants on May 19, 2017, when the three nieces were at the police station. In that text, the appellant’s sister pleaded with the nieces to not “go to the police,” since “putting [the appellant] in jail is not going to change anything and when my mom finds out and if he goes to jail, she will die”.

[18] In addition, the appellant’s sister refused to admit the extent of her knowledge of the allegations against the appellant. In cross-examination, she denied that she knew anything about the nature of the complainants’ allegations against the appellant. Yet in her May 19, 2017 text message to the complainants, she seemed to appreciate that the appellant had committed a wrong and might go to jail and suggested that the involved family members seek help from a psychiatrist.

[19] Further, despite her professed neutrality, we find that the appellant sister’s evidence was tainted by her evident desire to keep her brother out of jail. During cross-examination, she declared that she still did not believe that the appellant ought to go to jail. She also agreed, when questioned, that she disbelieved the complainants and believed the appellant “without knowing any information”. Clearly, the appellant’s sister was an interested and partial affiant. For these reasons, we conclude that the appellant has not met his onus to establish that the fresh evidence is credible.

[20] Finally on the credibility point, it should be noted that in addition to her testimony on collusion, the appellant’s sister testified in her second affidavit that the third niece stated that she had no memory of the appellant’s sexual offences. It is difficult to believe that the appellant’s sister would not have appreciated the significance of this admission when it was provided to her. The appellant’s sister has offered no credible explanation as to why she did not immediately bring the third niece’s alleged admission to the attention of defence counsel or her brother.

[21] In addition, we are also not persuaded that the fresh evidence is sufficiently probative. The key piece of evidence upon which the trial judge relied was the text conversation between the third niece and one of her sisters. In that conversation, the third niece described how the appellant would sit her on his lap and engage in “dry humping”. The trial judge reasonably concluded that the text conversation was the first occasion on which the third niece described her experiences to her sister and that her evidence was untainted by collusion.

[22] In contrast, the appellant sister’s claims beggar belief. If her central claim – that the three nieces colluded by discussing the appellant’s sexual offences at a conversation over wine – is taken as true, then the only logical conclusion is that the three complainants anticipated that collusion would become an issue at trial. The third niece would have had to fabricate a narrative in her text conversation with her sister in the hopes that the trial court would see her evidence as reliable and untainted.

[23] Such conclusions are implausible, and we see no basis to interfere with the trial judge’s conclusion that the third niece was a credible and reliable witness. Her text conversation with her sister was a critical piece of evidence, and nothing in the appellant sister’s affidavits successfully contradicts that evidence.

[24] In conclusion, we refuse to admit the proposed fresh evidence and consequently dismiss the appeal.

“G.R. Strathy C.J.O.”

“C.W. Hourigan J.A.”

“David M. Paciocco J.A.”

Footnotes

[1] In R. v. C.G., 2021 ONCA 809, at paras. 28-32, Nordheimer J.A. explained the analytical difference between “conscious” or “advertent collusion”, on the one hand, and “unconscious” or “inadvertent collusion”, on the other. Specifically, “advertent collusion” is a form of conspiracy between witnesses that undermines their credibility. In contrast, inadvertent collusion caused by innocent exposure to another’s version of events undermines the reliability of a witness’s evidence by confusing their memory. He recommended that since the word “collusion” connotes conspiracy, it is preferable to refer to “inadvertent tainting”.