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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court of Appeal for Ontario

DATE: 20230426 DOCKET: C70512

Fairburn A.C.J.O., Lauwers and Miller JJ.A.

BETWEEN

His Majesty the King Respondent

and

R.Y. Appellant

Counsel: Charles Spettigue, for the appellant Dana Achtemichuk, for the respondent

Heard and released orally: April 20, 2023

On appeal from the convictions entered by Justice Kim A. Carpenter-Gunn of the Superior Court of Justice, sitting with a jury, on November 2, 2021, and from the sentence imposed on April 8, 2022.

Reasons for Decision

[1] The appellant maintains that the trial judge erred by failing to instruct the jury to consider whether the complainant’s appreciation for detective shows and a show called “Story Time” tainted her evidence. We disagree that the charge was deficient on this point. We say this for a number of reasons.

[2] First, the defence theory was that the complainant altogether fabricated her evidence. This was made clear to the jury. The defence closed to the jury consistent with this theory. The defence was asked, as was the Crown, for a one-page summary to be included in the jury charge. That one-page summary was given by the defence to the trial judge and was indeed included in the charge. There is no hint of a suggestion in that summary of inadvertent tainting. Also, the trial judge instructed the jury in a way that focused, not on whether the complainant’s evidence had been inadvertently tainted, but on whether she had engaged in a wholesale fabrication.

[3] In this regard, the trial judge was clear that the jury should focus on whether the complainant’s account was based on information obtained from “other sources”. She also highlighted for the jury the fact that the complainant had “unusual” word choices, and that the jury had to specifically consider “the importance of the complainant’s TV watching habits on [her] memory of the alleged events.” The trial judge instructed the jury as follows:

You will need to decide the importance of the complainant’s TV watching habits on the complainant’s memory of the alleged events. You will recall that in her police statement she spoke of detective shows such as Story Time and what that program was all about. She detailed that sexual assaults came up in some of the detective TV shows that she was watching.

In her police statement she stated, “I’m in a detective show right now,” and you will have the transcript and the video. You will be able to read the transcript, watch the video as many times as you want about that issue. Does it matter that she could have perhaps hammered the piano keys or yelled to alert someone but did not?

That instruction is entirely consistent with how the defence proceeded at trial. The absence of an objection to the charge makes this clear.

[4] Second, the appellant argues that the trial judge erred when instructing the jury as follows:

The Crown submits that the complainant’s memory may be mistaken but the complainant was not trying to mislead the Court. The Crown has made submissions in her jury address about the fact that the defence witnesses discussed the events with one another. It is for you to decide what, if any, influence such discussions had on the evidence given by these witnesses. The Crown even went so far in her jury address to you, to use the word “colluded” when discussing this particular issue.

[5] The appellant argues that this instruction removed from the jury’s consideration the possibility that the similarities in the defence witnesses’ evidence was simply the product of inadvertent tainting. The appellant argues that the jury should have been instructed to consider whether the consistency in the defence evidence had a more innocent explanation than what the trial Crown suggested. We see no error in the instruction.

[6] The impugned instruction accurately tracked the Crown position. We reject the suggestion that this single passage in the charge removed an innocent explanation from the jury’s consideration. To the contrary, read as a whole, the charge properly equipped the jury with the tools necessary to resolve these issues, all rooted in the credibility and reliability of the witnesses.

[7] Accordingly, there is no need to address the Crown’s alternative position which is for this court to apply the proviso largely based upon the formidable DNA evidence recovered from the complainant’s body where she said she had been sexually touched.

[8] The appellant also seeks leave to appeal the sentence of six years. He argues that the sentence does not respect the “step” principle. We disagree. The trial judge’s reasons make clear that she was aware of his previous sentence, which involved a conviction for possession of child pornography. The appellant was bound by a s. 161 order at the time that he sexually assaulted his 10-year-old niece in this case. These were serious sexual assaults. They represent a significant escalation in behaviour and a significant breach of trust. The victim impact is profound. We see no error in principle. We defer to the trial judge’s determination of the sentence in this matter.

[9] The conviction appeal is dismissed. Leave to appeal sentence is granted. The sentence appeal is dismissed.

“Fairburn A.C.J.O.”

“P. Lauwers J.A.”

“B.W. Miller J.A.”