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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20221116 DOCKET: C69407 Doherty, Hoy and Paciocco JJ.A.

BETWEEN

His Majesty the King Respondent

and

J.N. Appellant

Counsel: Eric S. Neubauer, for the appellant Joshua W. P. White, for the respondent

Heard: October 27, 2022

On appeal from the conviction entered by Justice Graham Wakefield of the Ontario Court of Justice on February 22, 2021, and from the sentence imposed on July 14, 2021, with reasons reported at 2021 ONCJ 292.

Reasons for Decision

[1] After a trial before a judge sitting alone, the appellant was convicted of sexual assault and sexual interference. He appeals against the convictions. He abandoned his appeal against sentence.

The Background

[2] The complainant, R.C., was the appellant’s fiancé’s daughter. R.C. primarily lived with her father and slept over at her mother’s house on two out of every three weekends. She was seven years old at the time of the incident giving rise to the convictions.

[3] On January 10, 2019, R.C. was playing in the bathtub with her brother at her father’s apartment. The father recounted that he heard her get upset and tell her brother to stop doing something “gross”, that it was “what John does to me”. When her father asked her what she meant, R.C. explained that “mommy’s John” put his penis on her vagina. This conversation was not recorded. She demonstrated what “mommy’s John” did by rubbing her front on a pillow. Her father video-recorded her repeating the demonstration. Approximately a month later, she provided a video-recorded statement about the events at the Hospital for Sick Children in Toronto, Ontario (“SickKids”). She described that the appellant climbed up the ladder to her bunk bed and rubbed his penis “up, down” on her clothed vaginal area – what the trial judge described as “dry humping”.

[4] Importantly, at trial, the defence established that R.C. had made a prior, non-sexual allegation against the appellant. According to the father, about six months before R.C.’s January 10, 2019 disclosure, R.C. alleged that the appellant had hurt her neck. The injury was serious enough that it prompted the father to take his daughter to be seen by a doctor, to contact the Children’s Aid Society (“CAS”), and, when dissatisfied with CAS’s initial response, to escalate the issue to the caseworker’s supervisor. However, at trial, R.C. was clear that the appellant had never hurt her neck, that she did not know if she had told her father she had, and had never been taken to the doctor for the injury. According to R.C., the only person who had ever hurt her neck was her brother, who she claimed had choked her and was mean to her.

[5] R.C. was eight years old at the time of trial. She, her father, and the appellant testified. The videos of R.C.’s statement to police at SickKids and the demonstration to her father were admitted under s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46. The appellant denied the allegations. He was forthright about his prior sexual assault convictions, in 2007 and 2013, which involved adults. [1] He argued that R.C.’s prior and now denied allegation against him and the inconsistencies in her evidence raised a reasonable doubt.

[6] In brief oral reasons for conviction, the trial judge noted that, taken in a vacuum, the appellant withstood cross-examination and his “testimony would not be discounted in either of the first two branches of R. v. W.(D.), [1991] 1 S.C.R. 742”. However, he was required to assess the appellant’s evidence in light of the entirety of the evidence at trial.

[7] He completed his analysis:

In a concise trial such as this one, does the totality of the Crown case amount to proof beyond a reasonable doubt, resulting in an evidentiary basis, with which to reject the defendant's denials. Were the Crown case simply one of two opposing consistent versions of events, then W. D. , in my view, would require an acquittal. Even if not, should the defendant's testimony result in there being reasonable doubt, the required verdict is clear. Here the complainant's testimony is consistent and carries internal, specific details which add to her reliability, such as the description of the defendant climbing the steps to her bed and seeing his glasses. As well as the comment about Christmas, the direction to her brother in the bathtub to stop, as it was the same gross thing the defendant would do, and the video demonstration of how the defendant would rub against the complainant, prepared by the father.

In my view, those details and the video re-enactment, adds the same level of corroboration as was found in the J.J.R.D. line of cases [citation omitted]. In my view, the diary in the J.J.R.D. case parallels what prompts the video taken by the complainant's father. As in R. v. G.C., [2006] OJ No. 2245, it is not that the complainant demonstrated a sexual assault in the video, but rather the manner in which the evidence was adduced, first by the overheard conversation, and then by the complainant, demonstrating as well, as her categorizing behaviour as weird stuff and gross. That evidence added to the logical cogency of the complainant's evidence and a useful tool for me to assess the complainant's truthfulness and reliabilities as set out in R. v. G.C. paragraph 22.

Based on that corroborative evidence, I accept the evidence of the complainant, together with the video of the overheard conversation by her father, as proof beyond a reasonable doubt, against which, I now reject the defendant's denials. [Italics in original; underlining added.]

The issues on appeal

[8] The appellant argues that the trial judge provided insufficient reasons for his decision. He also argues that the trial judge: (1) misapprehended the evidence; (2) improperly made use of inadmissible hearsay by relying on R.C.’s utterances as they were conveyed at trial by her father in reaching his credibility finding; (3) erroneously treated consistencies in the complainant’s statements as corroborative, enhancing her credibility; and (4) failed to correctly apply the reasonable doubt standard, ultimately resolving the trial by preferring the evidence of the complainant over that of the appellant.

[9] We agree that the trial judge’s reasons do not permit meaningful appellate review and, accordingly, are insufficient. Given that conclusion, it is unnecessary to address the other grounds of appeal.

Analysis

[10] Although the case turned on the credibility and reliability of R.C.’s evidence, the trial judge made no reference to the evidence of R.C.’s prior allegation against the appellant, which she denied at trial, in assessing the credibility and reliability of her evidence.

[11] Moreover, the trial judge’s reasons suggest that he did not appreciate that this evidence was relevant to her credibility and reliability. In January 2019, R.C.’s mother and father were in the advanced stages of ongoing family court proceedings regarding the custody of, and the mother’s access to, R.C. and her brother. The trial judge referred briefly to the father having reported R.C.’s prior allegation to the CAS, but only considered the prior allegation in relation to the father’s credibility, writing, “I do not accept that course of action by the defendant [ sic , in reporting the allegation to the CAS] undermining any way his relaying the overheard conversations from the bathtub, or his videoing the child’s demonstration on the pillow.” The trial judge’s conclusion that it did not impact the father’s credibility suggests that he accepted that R.C. had, indeed, previously made an allegation against the appellant.

[12] The trial judge’s failure to grapple with the effect of the prior allegation in assessing R.C.’s credibility is particularly concerning in the face of R.C.’s evidence that she thought that her father did not like the appellant. That evidence raised the spectre of a child who might seek to recount a story that her father would like.

[13] In the absence of reasons specifically rejecting the father’s evidence about the prior allegation, the court is unable to determine whether the trial judge appreciated the significance of R.C.’s prior allegation on her credibility and reliability.

[14] Moreover, the trial judge specifically relied on the consistency of R.C.’s evidence in accepting it. In fact, there were several inconsistencies in her evidence. Some were in relation to peripheral details and not significant: whether the appellant referred to Christmas after the incident, whether R.C. saw the appellant’s underwear, and whether her mother was downstairs when the assault happened. But whether there was more than one assault, as she indicated in her statement to police, or only one, as R.C. testified in court, was a material inconsistency. From the trial judge’s reasons, the court is unable to determine whether the trial judge overlooked this inconsistency or misapprehended its significance in concluding that R.C.’s testimony was consistent.

[15] In this case, the appellant’s convictions rested on R.C.’s evidence. It was incumbent on the trial judge to address issues central to her credibility and reliability in his reasons.

Disposition

[16] Accordingly, the appeal is allowed. The convictions are quashed and a new trial is ordered.

“Doherty J.A.”

“Alexandra Hoy J.A.”

“David M. Paciocco J.A.”

[1] On a similar fact application, the trial judge ruled that the facts on the appellant’s 2007 conviction were too remote in time and too dissimilar to accept. While he allowed the Crown’s similar fact application with respect to the 2013 conviction, he ultimately concluded that the similar fact evidence was “substantially diminished in weight”. The appellant does not challenge the similar fact evidence ruling on appeal.