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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20221214 DOCKET: C70503
Gillese, Nordheimer and Sossin JJ.A.
BETWEEN
His Majesty the King Respondent
and
A.J.D. Appellant
Counsel: Daniel Stein, for the appellant Lilly Gates, for the respondent
Heard: October 25, 2022
On appeal from the conviction entered on February 4, 2020, by Justice A. Duncan Grace of the Superior Court of Justice.
Gillese J.A.:
I. OVERVIEW
[1] Before the events in question, the complainant V.M. lived in a townhouse with her mother C.S., her two younger siblings, and her stepfather. V.M. and her siblings saw her stepfather violently assault her mother, for which he was arrested. The assault left C.S. with injuries that included a broken hand and cheekbone. V.M. was terrified that her stepfather would come back to the house, break in, and kill her and her family.
[2] The appellant met C.S. through C.S.’s mother, from whom he rented a room. He and C.S. began a romantic relationship about a week after the assault. He began visiting C.S.’s home and stayed over frequently. He spent time with the children and told V.M. he would make sure nothing happened to her.
[3] The children had their own rooms but often shared their mother’s bed at night to feel safe. When the appellant stayed the night, he joined them. V.M. said that, on those occasions, he committed progressively more serious sexual assaults against her: first making her touch his penis, then digitally penetrating her vagina, and, ultimately, forcing vaginal intercourse. The assaults ended after C.S. woke early one morning, lifted the bed covers, saw the appellant’s hand inside V.M.’s bikini bottom, and told him to leave.
[4] Some mornings after being assaulted, V.M. wrote in her diary about what the appellant had done to her. She also saved some of the clothing she wore during the assaults in a garbage bag under her bed. Forensic analysis revealed the appellant’s DNA in semen on a pair of V.M.’s underwear.
[5] The assaults took place between December 1, 2017, and January 26, 2018, when the appellant was 19 years old and V.M. was 11 years old.
[6] Following a judge-alone trial, the appellant was convicted of one count each of sexual interference, invitation to sexual touching, and sexual assault. At trial, the appellant was 21 years old and V.M. was 13.
[7] The appellant was sentenced to 4.5 years’ imprisonment.
[8] The appellant appealed against conviction and sentence. However, in his factum filed on this appeal, counsel for the appellant stated the appellant was pursuing only his conviction appeal.
[9] There are two main issues on appeal. The first is whether the trial judge erred in foreclosing defence counsel from re-examining the appellant on his intellectual disability. The second is whether the trial judge and the Crown improperly relied on the undisclosed contents of the complainant’s diary.
[10] For the reasons that follow, I would dismiss the conviction appeal.
II. THE TRIAL
[11] Defence counsel filed an application under s. 278.3 of the Criminal Code, R.S.C. 1985, c. C-46, in respect of the complainant’s diary. However, on the appellant’s instruction, defence counsel abandoned the application before trial, saying at the time of abandonment that “the case law was not particularly supportive of my position”.
[12] At trial, four people testified: the complainant; her mother; Mr. James Sloots, a forensic biologist; and, the appellant.
The complainant’s evidence
[13] The complainant gave a videotaped statement to police the day after the final assault. She adopted its contents when testifying and the statement was admitted at trial, pursuant to s. 715.1 of the Criminal Code.
[14] V.M. said she was afraid of her stepfather and believed that the appellant would help protect her family from her stepfather if he returned to their home. She said that, for some weeks, the appellant stayed at the townhouse that she shared with her mother, brother, and sister. Her mother’s king-sized bed was a communal one and all of the incidents she described occurred there. She said that those sharing the bed were not always in the same location in the bed but the appellant always made sure he was sleeping next to her. She described four categories of activity that took place over a period of several weeks.
[15] First, the appellant put one of V.M.’s legs between his as she pretended to sleep. Next, she said the appellant began placing her hand down his pants onto his erect penis. V.M. estimated this happened about 14 times. In the assaults that followed, he put her hand down his pants but, after a few minutes, he put his hand down her underwear and digitally penetrated her vagina. She estimated this happened about six times. In the incidents that followed, the appellant penetrated her vagina with his penis. She estimated that there were two or three incidents of forced intercourse.
[16] In the first incident of intercourse, V.M. was wearing blue-green underwear. She saw some “gross, thick, white stuff” in her underwear after the assault.
[17] After about the second time the appellant put her leg between his, V.M. would sometimes write in her diary about what had happened. She also began placing some items of the clothing she had worn during an assault in a garbage bag under her bed, without first laundering them. She placed the blue-green underwear in the garbage bag under her bed after the first incident of intercourse. A photograph of that underwear became Exhibit 4 at trial.
[18] V.M. described her mother as a heavy sleeper who did not waken during the incidents, except the last one. She said the appellant never spoke to her during or after the incidents. During them, she would quietly whimper, sweat, tense up, and freeze.
[19] V.M. described the events of the last incident. Everyone was sleeping in her mother’s bed. She remembered being on the outside, closest to the wall. Next to her was the appellant, beside the appellant was her mother, and on the mother’s other side were her siblings.
[20] She recalled that the appellant had his hand down her turquoise bikini bottom, a photograph of which became Exhibit 3 at trial. He touched her vagina and then forced intercourse on her. Afterwards, he wrapped his leg around her legs and again touched her vagina. At that point, her mother pulled the covers off the bed, saw what the appellant was doing, snapped her fingers, and told the appellant to get out. She said her mother was angry and the appellant also looked angry, but the appellant said that he did not know what was going on and that he was confused.
[21] After the appellant left the house, her mother asked V.M. what was going on. She showed her mother her diary, which had entries describing the appellant’s sexual conduct. She also told her mother about the clothing in the garbage bag under her bed. Her mother was very upset, told V.M. not to shower, and sent her to school.
[22] When asked why she continued to sleep in her mother’s bed with the appellant, V.M. said it was because she was scared, had really bad nightmares, and thought that if she stayed in her own room the appellant would go there anyway. She felt like there was nowhere that she would be safe.
[23] Later in the day of the last assault, C.S. took V.M. to the hospital, where vaginal swabs were taken.
The mother’s testimony
[24] C.S. testified about the end of her relationship with V.M.’s stepfather, family law proceedings involving him, the participation of the Children’s Aid Society, and her involvement with the appellant.
[25] C.S. acknowledged that she and the appellant had a sexual relationship although her description of the extent of that changed during her testimony in-chief. On the first day of her examination-in-chief, C.S. said that the appellant and her children would rarely sleep in the same bed. On the second day, she corrected her evidence by stating the children were in her bed with the appellant “more often than [she] would probably like to think”. She had been fearful of giving this evidence because she thought she might lose her children or be charged with negligence due to the ongoing family law proceedings with her ex-husband.
[26] C.S. said that she and the appellant had intercourse in her bed the night before the final incident, which took place the following morning in the early hours. The appellant had ejaculated but she did not recall any fluids on the bed afterwards. Typically, they would use a shirt to clean it up.
[27] C.S. described her recollection of what happened on the morning of the final incident. She said that all but her youngest child were sleeping in her bed. [1] She awoke in the early hours when the appellant got up to use the bathroom. When he returned, he asked her to move closer to the side of the bed he had just vacated so he was positioned next to the complainant. He then lay down next to the complainant. C.S. said she fell back asleep for a little while but awoke when she thought she heard the appellant whispering. She could not hear what he was saying. Next, she felt the appellant’s leg touch her leg, even though the complainant lay between the two of them. She said she saw his arm go up and around the complainant and then felt movement that she described as a “thrusting” motion. She ripped the blankets off the bed and saw the appellant with his arms around V.M., his leg between her legs, and his hand inside V.M.’s turquoise bikini bottom. She snapped her fingers and told the appellant to leave. He said he did not want to leave and asked her why she was acting as she was. He denied doing anything wrong.
[28] After the appellant left, C.S took the complainant to school and the other children to daycare. Later that day, C.S. went to her mother’s home and confronted the appellant and he left the premises.
The forensic evidence
[29] Mr. Sloots testified, on consent, as an expert in the area of body fluid identification and DNA analysis and interpretation. He worked as a forensic biologist at the Centre of Forensic Sciences in Toronto. He gave evidence on a number of bodily swabs and two pairs of V.M.’s undergarments. [2]
[30] No male DNA was found on either of V.M.’s vaginal swabs, which he explained was not unexpected or significant, given the passage of time. One external genitalia swab detected male DNA below the reliable limit. The remainder of the swabs contained no male DNA.
[31] Testing of the turquoise bikini bottom V.M. was wearing during the last assault showed a “very strong” indication of the presence of semen in the crotch area. Secondary tests were conducted. The first such test did not detect prostrate specific antigen (PSA), which was an unexpected result. However, further tests detected the presence of sperm cells. Mr. Sloots said that while such cells could survive even after an item was laundered, the stain on the bikini bottom was as a result of something that occurred after it had been washed.
[32] The blue-green underwear that V.M. was wearing the first time she said the appellant had sexual intercourse with her was also examined, and a small piece of fabric was removed and tested. PSA was identified. The fragment was sent for DNA analysis. The DNA results were “estimated to be greater than one trillion times more likely to originate from [the appellant] than if they originate from an unknown person unrelated to him”. In short, the semen in the underwear revealed the appellant’s DNA.
[33] Mr. Sloots acknowledged that he could not determine how sperm cells or DNA linked to the appellant came to be on V.M.’s bikini bottom and underwear respectively. He agreed the possibilities included scenarios that did not involve the appellant and the complainant having sexual contact.
The appellant’s testimony
[34] The appellant elected to testify. He said he voluntarily attended the police station when asked to do so and gave a sample of his DNA. He confirmed much of C.S.’s testimony about their relationship, including that the children often slept in C.S.’s bed together with them. He denied ever touching V.M. in a sexual manner.
[35] In direct examination, the appellant said he had a clear recollection of the last evening he spent at C.S.’s home. He recalled the positions of the children, C.S., and himself in C.S.’s bed as V.M. had remembered them: V.M. was on the outside of the bed near the wall; he was next to her; C.S. was on his other side; and the two younger children were on C.S.’s other side. He said he went to bed that evening and was awoken when C.S. jumped out of bed, lifted the covers, and started screaming at him, saying he had touched “her kid”. He said that at that time, his left arm was under C.S.’s pillow, his right arm was on his chest, and he was not touching V.M. He said he followed C.S. downstairs where they had a brief conversation.
[36] On cross-examination, however, the appellant said he had not been accused of anything when he left C.S.’s home and when he asked C.S. what the problem was before leaving, she said something about a bad dream and that he was not to worry about it. When confronted with these inconsistencies, the appellant agreed that his two versions of what had happened were “totally different” but he was confused, did not know what was going on, and had just been woken up. The appellant was also pointed to yet a third version of events, the one that he gave the police when interviewed.
[37] Crown counsel challenged the appellant on the inconsistencies in his testimony. She said that his response when C.S. saw him with his hand down her daughter’s bikini bottom at her vaginal area was the same as that which he was using in court. In both, he repeatedly said “I don’t know what you’re talking about. I’m confused. I don’t understand”. Crown counsel then asked: “Because that’s how you respond when you’re caught lying, right?” The appellant answered: “No, I was not.”
[38] Other parts of the appellant’s testimony were also inconsistent. For example, he gave differing accounts of his height and weight at the time of the alleged incidents, and about when he next saw C.S. after the final assault.
Re-examination
[39] In re-examination, defence counsel asked the appellant how far he had gone in school. The appellant replied that he “got up to my Grade 11 on intellectual disability courses”. Counsel then asked him if he had been assessed when he was younger, due to learning difficulties.
[40] Crown counsel objected, saying that the questions being asked were not appropriate on re-examination and could have been raised in examination in-chief.
[41] Defence counsel argued that the line of questioning flowed from the Crown suggesting to the appellant during cross-examination that when he said he was confused and getting mixed up, it was because he was lying. Defence counsel said that the questions he wanted to pursue on re-examination were to provide an alternate explanation for the appellant’s confusion.
[42] The trial judge remarked that the presence of a disability was something the court would have expected to have been introduced in-chief. However, he allowed defence counsel to continue his re-examination, explaining he would hear submissions later on what to do with the re-examination “if anything”.
[43] Defence counsel resumed re-examination and asked the appellant what school he attended for Grade 11 and whether it was a special class. The appellant gave the name of the school and said he was in “learning disability classes”. Defence counsel asked no further questions and the Crown declined to conduct further cross-examination.
[44] Before closing court for the day, the trial judge told counsel he would hear submissions the following morning on how the court should treat the re-examination.
[45] Counsel’s submissions the following day were similar to those they had already made. Defence counsel argued that he had the right to re-examine the appellant on his education and learning disability because the appellant’s confusion did not “crystallize” until cross-examination. Re-examination offered another explanation for the appellant’s “confusion” on cross-examination and the trial judge was entitled to use it.
[46] The Crown submitted that defence counsel “clearly” knew of the appellant’s special education classes in high school and that he had a learning disability. She argued that the defence made a strategic decision to not raise those matters in examination-in-chief and should not be allowed to introduce them in re-examination. It was a new area and not one that the Crown had raised in cross-examination.
[47] The trial judge told counsel that the areas raised in re-examination were new ones that could have been addressed in examination in-chief. He also said that even if he were to consider that evidence, he did not know what to make of it because there was no evidence on the level of disability or how it might impact on the appellant’s ability to understand questions.
[48] In his reasons for conviction, the trial judge added the following reasons for not considering the re-examination. The appellant was asked for the first time about a learning disability in re-examination. While the appellant told the Crown several times during cross-examination that he was confused, there had been no prior suggestion of any limitation in his intellectual capability. The trial judge said that allowing the subject to be canvassed at that late stage in the trial would have necessitated a broad inquiry that potentially included the calling of witnesses neither side had previously contemplated testifying. The proposed re-examination was outside the scope of that which was proper and he would not consider it.
III. The Decision Below
[49] Using the framework in R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge began by considering the appellant’s testimony. He found it was inconsistent on many matters, including the sequence of events on the final morning. He pointed out that, during direct examination, the appellant said that, despite his complete innocence, he was awoken and accused of touching one of C.S.’s children. However, in cross-examination, the appellant said there was no accusation when he awoke. Instead, he said that C.S. made a comment about a bad dream and while he was asked to leave, there was no reason to believe that C.S. thought badly of him.
[50] The trial judge said he did not believe the appellant’s version of events nor did it leave him with a reasonable doubt. He did not accept that the inconsistencies in the appellant’s testimony were attributable to confusion.
[51] The trial judge also carefully considered V.M.’s credibility. In addition to recounting the various inconsistencies as alleged by defence counsel, the trial judge added others, including that: V.M.’s police interview was hard to follow at times, on occasion she seemed fascinated by her hospital visit the day before, and she appeared extraordinarily calm.
[52] However, while the complainant’s account was not problem-free, the trial judge found her evidence compelling and accepted it. He considered the frailties of her evidence in the context of her age, the “surreal” nature of what happened to her, and her fear of her stepfather which led to her to feel safer in her mother’s bed even with the appellant there. He also found that the complainant’s testimony on the progression of the appellant’s conduct “rang true” and was corroborated on several key points about the events in the final incident by her mother’s testimony.
[53] Further, the trial judge accepted that the connection between the appellant and V.M.’s two undergarments that had been turned over to the police was established. When considered in context, the trial judge said it was “clear” that the semen stain on the bikini bottom (shown in Exhibit 3) and the DNA found on the underwear (shown in Exhibit 4) arose directly from sexual contact the appellant initiated with the complainant and not from some other source such as dirty bedsheets.
IV. The Issues
[54] The appellant raises two issues on appeal.
[55] First, he submits the trial judge erred in law in refusing to permit defence counsel to re-examine him on his intellectual disability. Second, he submits that both the trial judge and Crown counsel misused the complainant’s undisclosed diary.
V. Analysis
ISSUE #1 The trial judge did not err in his treatment of re-examination on the appellant’s intellectual disability
[56] The appellant makes three arguments in support of his submission that the trial judge erred in law in refusing to permit defence counsel to re-examine him on his intellectual disability.
[57] First, he says that his intellectual disability only became relevant when the Crown raised in cross-examination its theory that the appellant pretended to be confused when it suited him. He contends that he was permitted “as of right” to the re-examination because its purpose was rehabilitative and explanatory, and related to matters that arose out of cross-examination.
[58] Second, the appellant says it was far from inevitable that he would stumble as he did during trial: the trial judge was entitled to know he had an intellectual disability and to consider that matter when assessing the Crown’s argument that cross-examination revealed him to be a liar.
[59] Third, the appellant says the trial judge appears to have “pre-judged the potential impact of [the re-examination] evidence on the issue of credibility and the ability of counsel to rely upon it in closing submissions”.
[60] I do not accept this submission or any of the arguments made in support of it. The court found it unnecessary to call on the Crown to respond on this issue.
[61] The appellant’s submission on this issue is based on a false premise. Contrary to the appellant’s assertion, the trial judge did not foreclose defence counsel from re-examining the appellant on his intellectual disability. Defence counsel began his re-examination of the appellant on this matter and the trial judge permitted him to continue and complete it.
[62] Defence counsel’s first question on re-examination elicited that the appellant had achieved up to Grade 11 on intellectual disability courses. When defence counsel attempted to continue this line of questioning, Crown counsel objected. The trial judge heard brief submissions on the matter and then permitted defence counsel to continue his re-examination, explaining that he would determine what use he would make of it after hearing further submissions by counsel. Defence counsel did continue with re-examination and elicited the name of the high school the appellant had attended for Grade 11 and that he had taken “learning disability classes”. Defence counsel chose to ask no further questions in re-examination. Thus, on the record, it is clear that defence counsel was permitted to re-examine the appellant on his intellectual disability.
[63] I now address the appellant’s specific arguments on this issue. The law governing re-examination is well-settled and a full answer to those arguments: see R. v. Evans, [1993] 2 S.C.R. 629, at p. 644, and R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 148, leave to appeal refused, [2012] S.C.C.A. No. 8.
[64] At para. 148 of Candir, Watt J.A., writing for this court, set out the following principles which govern re-examination:
- The permissible scope of re-examination is linked to its purpose and the subject-matter on which the witness was cross-examined.
- The purpose of re-examination is largely rehabilitative and explanatory. The witness is afforded the opportunity, under questioning by the examiner who called the witness in the first place, to explain, clarify or qualify answers given in cross-examination that are considered damaging to the examiner’s case.
- The examiner has no right to introduce new subjects in re-examination, topics that should have been covered, if at all, in examination-in-chief of the witness.
[65] The appellant’s arguments must be rejected in light of these principles. The scope of re-examination is linked to its purpose and the subject-matter on which the witness was cross-examined. The Crown raised no issue about the appellant’s intellectual capacity in cross-examination. The subject-matter of the cross-examination was the appellant’s inconsistent versions of (among other things) what happened on the last evening that he slept at C.S.’s home. The questions that the Crown put to the appellant in cross-examination were for the purpose of testing the appellant’s credibility. Credibility is not a “subject-matter” on which the appellant was examined.
[66] Defence counsel used re-examination to raise, for the first time, the subject of the appellant’s intellectual disability. If defence counsel wanted the court to consider that matter, he could have introduced it in the appellant’s direct examination. He did not have the right to raise that subject, for the first time, in re-examination.
[67] Further, there is nothing in the appellant’s contention that the trial judge pre-judged the potential impact of the re-examination when determining the appellant’s credibility. After the Crown objected to the re-examination, both counsel made brief submissions on the matter. The trial judge told counsel the presence of an intellectual disability was a matter he would have expected to have been introduced in examination-in-chief. He then permitted re-examination to continue, after explaining he would hear submissions on what use, if any, he should make of the re-examination. The fact the trial judge advised counsel of his concern prior to hearing the balance of the re-examination does not mean the trial judge pre-judged the re-examination. The trial judge was simply indicating his concern so that counsel could proceed accordingly, both in the conduct of the re-examination and in the preparation of their submissions on the use to be made of it.
[68] The trial judge had the discretion to grant defence counsel leave to introduce the new subject of the appellant’s intellectual disability on re-examination (Candir, at para. 148). He exercised that discretion and allowed the re-examination. However, the trial judge also had the discretion to decide what to do with the re-examination. He exercised that discretion reasonably – as his reasons show – and refused to consider the re-examination. There is no basis for appellate intervention with that exercise of his discretion.
ISSUE #2 Use of the complainant’s diary
No error in the trial judge’s use of the diary
[69] The appellant submits that the trial judge erred by relying on the diary in a way that went beyond its limited evidential value as narrative. I do not accept this submission.
[70] The legal principles that governed the trial judge’s treatment of the diary are settled law: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 78. The complainant’s diary was to be treated in accordance with the law governing prior consistent statements. In general, prior consistent statements are inadmissible because they lack probative value and constitute hearsay when adduced for the truth of their contents (Dinardo, at para. 36).
[71] However, in some circumstances, prior consistent statements are admissible as part of the narrative and may be used by the trier of fact to understand how the complainant’s story was initially disclosed (Dinardo, at para. 37). It is impermissible for the narrative evidence to be used to confirm a complainant’s in-court testimony (Dinardo, at para. 39). However, the narrative evidence can be used for the “permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility” (Dinardo, at para. 37). Particularly in cases involving the sexual abuse of children, the prior consistent statements of a complainant may assist the court in assessing the complainant’s likely truthfulness (Dinardo, at para. 38).
[72] The trial judge did not step outside of these parameters in his use of the diary. He was fully aware that he could not use the contents of the diary to confirm the complainant’s in-court testimony. At para. 92 of his reasons, the trial judge explicitly cautions himself to that effect, stating that the fact V.M. made handwritten entries in her diary about the alleged assaults “does not, in any way, prove that any of the incidents occurred”.
[73] The appellant takes issue with the sentence that follows, in para. 92, in which the trial judge said: “[The diary entries] do establish, though, that she was keeping a record of what she says happened before her mother intervened” (the “impugned sentence”). The appellant submits the impugned sentence is sufficiently vague that this court should draw the inference that the real value of the diary was the repetition of the same allegations made at trial.
[74] In my view, this submission is untenable. Immediately before making the impugned sentence, the trial judge expressly stated that the diary did not “in any way” prove that the incidents had occurred. In the face of that caution, the impugned sentence cannot reasonably be construed as the trial judge using the fact of the diary to confirm the complainant’s in-court testimony. Appellate courts are not to scrutinize trial reasons in a search for error nor parse a trial judge’s imperfect or summary expression: R. v. G.F., 2021 SCC 20, at para. 76. Assuming there is some vagueness in the impugned sentence, to conclude the trial judge used the evidence improperly would be an impermissible parsing of the trial judge’s “imperfect or summary expression”: G.F., at para. 76.
[75] In any event, apart from the reference to the diary in para. 92 discussed above, the trial judge made no mention of the diary when determining the complainant’s credibility. The trial judge found the complainant credible after canvassing the strengths and weaknesses of her testimony, and considering it in light of the other evidence that he accepted. That other evidence included the forensic evidence relating to the semen stain on the bikini bottom the complainant was wearing during the final incident and the appellant’s DNA in the semen in the complainant’s underwear, as well as her mother’s corroborative evidence of the events of the last incident.
The Crown’s use of the diary
[76] The appellant contends that the Crown acted unfairly by adducing the contents of the diary to bolster the complainant’s credibility without advising defence counsel that it intended to use the information in the diary as part of its case against the appellant. This submission rests on R. v. Quesnelle, 2014 SCC 16, [2014] 2 S.C.R. 390, at para. 16, where the Supreme Court stated:
While the Crown may not disclose the contents of the [s. 278.1] record, it should in appropriate circumstances give an assessment of the likely relevance of a record in its possession, as well as indicate the basis of its relevance. At a minimum, the Crown should advise if it intends to use any information contained in records protected by [s. 278.1] as part of its case against an accused.
[77] In my view, the Crown’s use of the diary did not affect the outcome at trial nor lead to overall unfairness in the trial process.
[78] There are two propositions in the above quotation from Quesnelle. The first provides that the Crown should, in appropriate circumstances, give an assessment of the likely relevance of a record in its possession and the basis of the relevance. In this case, there was no need for the Crown to tell defence counsel about the diary or its relevance. He was well aware of the diary before trial, as evidenced by his filing of the s. 278.3 application in respect of it. As an aside on this matter, I note that the Crown did not resist that application, as the appellant contends. The defence abandoned that application before trial, on the appellant’s instruction.
[79] The second proposition provides that the Crown should advise if it intends to use information in the diary as part of its case. With one exception – to which I return below – the record indicates that the Crown did not intend to use the diary apart from its permissible use as narrative evidence. This can be seen in the Crown’s questions put to the complainant and her mother.
[80] The following extract is from the complainant’s direct examination:
Q. Okay. As those — and so before we get to anything called intercourse, before that happens, were you recording down in — because you mentioned some sort of a diary or journal in your statement to the police. Were you writing about [the appellant] or writing about what he had been doing to you before you get to that Sunday? A. Yes. Q. And what — why? Was there any particular reason why you would be making notes like that in your journal? A. For evidence for the police. Q. Okay. And although you wrote in your journal, did you speak to your mom? A. No. Q. Okay. When he left, did your mom come and talk to you? A. Yes. Q. And did you tell her what was going on? A. Yeah, I showed her my diary and I showed — and I told her about what he's been doing and how long it's been going on for. And then she got really upset and she sent me to school. So then she can go tell the police and do what she had to do. Q. Did you tell her at all about the clothing that you had had under your bed? A. Yes. Q. Did you show her? A. I didn't show her but I told her that there's a whole bunch of clothing in here and she told me that, like, I shouldn't shower off that day because when I go to the hospital during the night they'll probably need, they'll probably need, like, all the DNA and everything. Q. Okay. And this, this journal or diary that you were mentioning is it something that you just, like, showed your mom, or did you give it to your mom? A. I showed it to her and then I put it on her dresser. Q. Okay. A. So then she can have that. Q. Okay. After which times did you decide to write down what happens to you in your journal? A. About the second time that he started putting my leg in between his I started writing it down because it wasn't just a one-night thing and from that day on, I started writing.
[81] The extract shows that the Crown questioning of the complainant was limited to when and why the complainant made the notes, and how and when the complainant disclosed the diary to her mother. Such questions fall within the Dinardo parameters on narrative evidence about how the complaint came to be disclosed; they do not invite the complainant to disclose other information from the diary.
[82] C.S., the complainant’s mother, was also asked about the diary. With one exception, the questions again were permissible as narrative evidence on how the complainant initially disclosed the incidents to C.S. However, in response to one question, C.S. did reveal an aspect of the diary’s contents (the “impugned exchange”). The impugned exchange is underlined in the following extract of the Crown’s direct examination of C.S.:
Q. And did she tell you anything more than what you had just seen that day? About anything else that might have been happening with her and [the appellant]? A. Yeah, she, she said that she couldn't talk to me about it but she did have a diary that had written out basically multiple entries describing different dates and times that it had happened — other, other times. Q. All the way up to and including what? A. I think the — it was the, the last entry that she had written was, was the Sunday prior to, to that day. Q. And do you know what it was that... A. That.... Q. ...she was saying he did to her? A. That, that there was, like, sexual intercourse. Like, like full-on, like.... Q. Okay. So you then.... THE COURT: Sorry, are you finished — have you finished your answer? A. Yeah. [Emphasis added.]
[83] C.S. testified further about the diary during examination-in-chief and re-examination:
Q. She said that? "I don't want to live anymore"? A. Mm-hmm. Q. Yes? A. Yes, she said she just wanted to die. Q. How long did it take to get her down from that, that state? A. Well, she, she did, she did bring in the diary so she was able to tell me that she couldn't tell me and that she couldn't talk to me about it. It was too much. But that she could show me. And I explained to her it wasn't her fault and I wasn't mad at her. You know, I gave her a big hug and I told her it was gonna be okay and we would deal with it. Q. You were asked what the last entry for the diary was and said that it was the Sunday before. A. I believe it was the Sunday. Q. My question is was this diary of loose-leaf paper? A. Yes, it was lined paper that she had put in a – one of those – the ringed Duo-Tangs.
[84] Generally, the questions the Crown put to C.S. in direct examination and re-examination fall within the parameters established by Dinardo, to show the fact and timing of the complaint. However, in the impugned exchange, the Crown stepped beyond the Dinardo boundaries and asked a question that invited C.S. to give information about the contents of the diary.
[85] The impugned exchange is unfortunate. However, it is not dispositive of this ground of appeal. In R. v. P.B., 2019 ONCA 13, at para. 7, leave to appeal refused, [2019] S.C.C.A. No. 84, this court considered the same paragraph in Quesnelle as the appellant relies upon and stated:
To succeed in a non-disclosure appeal an appellant must do more than show that the Crown breached its disclosure obligation. The appellant must also show that his right to make full answer and defence has been impaired as a result of the non-disclosure, by showing that there is a reasonable possibility that the non-disclosure affected the outcome at trial or the overall fairness of the trial process.
[86] In this case, there is no reasonable possibility that non-disclosure affected the trial’s outcome. As I explain above, the trial judge did not rely on the fact of the diary or its contents in convicting the appellant. He found beyond a reasonable doubt that the appellant committed the sexual assaults based on: the complainant’s testimony, which he accepted; the forensic evidence showing the appellant’s DNA, in the form of semen, in the complainant’s undergarments; and, C.S.’s corroborative evidence relating to the last assault.
[87] Moreover, I do not see a reasonable possibility that the non-disclosure affected the overall fairness of the trial process. There was a single unfortunate question and answer. The fact that experienced defence counsel did not object nor seek to re-open his s. 278.3 application after hearing the impugned exchange is telling in this regard.
VI. Disposition
[88] For these reasons, I would dismiss the appeal against conviction. I would also dismiss the sentence appeal as abandoned.
Released: December 14, 2022 “E.E.G” “E.E. Gillese J.A.” “I agree. I.V.B. Nordheimer J.A.” “I agree. L. Sossin J.A.”
Endnotes
[1] This was different than the evidence of the appellant and V.M., both of whom remembered the youngest child as also being in the bed. The trial judge said this discrepancy caused him no concern because that child played no part in the events in issue (at para. 97 of his reasons).
[2] The police had retrieved the bag of clothes from under the complainant’s bed after being told of its existence by the complainant and her mother.