Publication Ban 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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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: 20231227 Docket: COA-23-CR-0656 Fairburn A.C.J.O., Doherty and Trotter JJ.A.

Between

His Majesty the King Respondent

and

P.K. Appellant

Counsel: Lance Beechener, for the appellant David Tice, for the respondent

Heard: December 18, 2023

On appeal from the convictions entered on December 20, 2021 by Justice Dale F. Fitzpatrick of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was charged with sexual assault and sexual interference. The complainant was his 15-year-old niece. The Crown’s case rested on the evidence of the complainant and forensic evidence which appeared to provide strong support for the complainant’s evidence. The appellant testified, denied the allegations, and gave an “innocent” explanation for the forensic evidence.

[2] The trial judge convicted the appellant and imposed a sentence of 7 years. The appellant appeals conviction only.

[3] The appellant, aged 40 at the relevant time, is the brother of the complainant’s mother. The appellant and the complainant had met only once before the events giving rise to the charges.

[4] On July 7, 2017, the complainant’s mother was going on a weekend trip and arranged for her mother, also the appellant’s mother, to look after the complainant. On the evening the complainant arrived at her grandmother’s, the appellant went to his mother’s residence to have dinner with her and the complainant. The appellant’s wife and children were away for the weekend.

[5] The complainant and the appellant spent a great deal of time together over the next 24 hours. They went to various places, including the appellant’s residence. During that 24-hour time period, the appellant bought the complainant a phone, paid for a phone plan, gave her some cash, and took her to a drive-in. The complainant talked with the appellant about her difficult relationship with her mother and her interests in music. The appellant professed to be very impressed with her musical skills and encouraged her to pursue her interests. He also provided a sympathetic ear when the complainant spoke about her relationship with her mother. During the discussions, the complainant explained that her mother had taken away the complainant’s phone as a disciplinary measure. At the complainant’s request, the appellant bought her a new phone.

[6] The day after the appellant and the complainant met at her grandmother’s, the complainant went to the appellant’s apartment to visit. The appellant went to work, leaving the complainant alone in his apartment and promising to return that evening.

[7] The appellant did return in the early evening. According to the complainant’s evidence, she was sitting on the couch with the appellant watching a movie when he attacked her. In the course of the attack, he pushed her onto her stomach, pulled her shorts and underwear down, and penetrated her vagina and anus with his fingers and tongue. As the attack went on, the complainant believed that the appellant penetrated her vagina with his penis, and at least attempted to penetrate her anus. The complainant was sobbing loudly.

[8] The complainant testified that after the attack had ended, the appellant apologized, and told the complainant he did not realize she was crying. He took the complainant back to her grandmother’s, stopping on the way for dinner. When the appellant dropped the complainant off, he told her to take a shower and offered to pay for a longer phone plan if she did not tell anyone what he had done.

[9] Later that night, the complainant told some friends what had happened to her. They encouraged her to tell her mother. She did so. She and her father went to the police early the next morning. At the request of the police, the complainant and her mother gathered up the clothing she had been wearing when she was attacked by the appellant and took it to the police.

[10] The appellant testified. He indicated that he fell asleep while he was watching television with the complainant. He awoke sometime later to feel the complainant’s hand touching and rubbing his penis inside his pants. At first, the appellant was confused. He did not know what was happening. The complainant then inserted two fingers into his mouth, causing him to gag. He pushed her away. The complainant asked “why, don’t you want me?” The complainant put the hand she had inserted into the appellant’s mouth inside her shorts and began rubbing her crotch.

[11] The appellant testified he did not know whether he had an erection or had ejaculated.

[12] According to the appellant, the complainant then asked him to buy her some “weed”. He refused and drove her back to her grandmother’s, stopping on the way at Swiss Chalet for dinner. The appellant denied telling the complainant to take a shower when she got to her grandmother’s.

[13] The complainant’s clothing was tested at the Centre for Forensic Sciences (“CFS”). The test revealed:

• Semen found in various locations on the complainant’s black shorts;
• Semen found in at least two locations on the complainant’s underwear; and
• Saliva found on the complainant’s underwear.

[14] The defence admitted that the semen came from the appellant.

[15] Roger Frappier, from the CFS, was qualified as an expert in bodily fluid identification and DNA analysis. He testified about the testing done on the complainant’s underwear and shorts. In the course of his examination-in-chief, Mr. Frappier was presented by the Crown with a hypothetical that reflected the complainant’s evidence and asked whether that hypothetical could explain the deposits of the stains on the shorts and underwear. Mr. Frappier testified that it could. Mr. Frappier was then asked a second hypothetical which reflected, to some degree at least, the evidence the appellant eventually gave. Mr. Frappier was asked whether that hypothetical could explain the stains. He acknowledged that the second hypothetical could explain the deposits, depending on whether the facts assumed in the hypothetical existed in the evidence.

[16] There are two grounds of appeal.

A. Did the trial judge’s response to the jury’s question render the trial unfair and result in a miscarriage of justice?

[17] In his initial instructions, the trial judge summarized the substance of Mr. Frappier’s evidence. He then said:

Both counsel sought Mr. Frappier’s opinion on the possible explanation for how and when the semen was deposited. Ms. Stevenson [Crown counsel] presented Mr. Frappier with a fact scenario matching the events described by [the complainant] in her evidence. Ms. Stevenson and Mr. Manishen [defence counsel] presented Mr. Frappier with a fact scenario matching the events described by [the appellant] in his evidence. Mr. Frappier testified that either scenario could possibly explain the semen deposits depending on numerous variables.

[18] There was no objection to the charge.

[19] Within 30 minutes of retiring to deliberate, the jury returned with a question:

We would like to see [1] Mr. Frappier’s testimony starting from the point where the Crown put forward the two hypothetical scenarios through to the end of chief.

[20] As counsel acknowledged, the jury had asked a “discrete and specific question”. They wanted to hear Mr. Frappier’s evidence in-chief on a specific subject matter, the two hypotheticals presented to him.

[21] The trial judge asked counsel for submissions on how to best answer the jury’s question. Counsel for the appellant at trial suggested that the trial judge must, in addition to reading the evidence in-chief specifically requested by the jury, play for the jury the parts of the cross-examination that related to the hypotheticals. Counsel also referred to the possibility of either playing those parts of the cross-examination to the jury, or providing “summaries of testimony of the issues as developed in cross-examination”.

[22] Crown counsel responded that she was unaware of any specific cross-examination on the hypotheticals.

[23] The trial judge indicated that, although counsel for the appellant’s cross-examination had been “fulsome”, he did not know how he would begin to go about locating and isolating the parts of the cross-examination which touched on the hypotheticals.

[24] Defence counsel appeared to acknowledge the difficulty described by the trial judge and suggested:

It may be, Your Honour, that at least at this stage for you to indicate to the jury that you can and would be prepared to have played back for them areas of cross-examination that qualified Mr. Frappier’s answers as given to the Crown in-chief, that might let them know that can certainly be done after they’ve heard back the evidence on examination-in-chief.

[25] The trial judge picked up on defence counsel’s suggestion. Crown counsel indicated she was content with that proposal. When the trial judge asked defence counsel to confirm that the approach defence counsel had suggested was appropriate, defence counsel said:

As an alternate – so I took from Your Honour’s comments having regard to difficulty in drawing together all that came out in cross … that that approach was not something you wished to do. An alternate then, with that in mind, would be this.

[26] The trial judge decided to proceed as outlined in defence counsel’s “alternate” suggestion. After playing Mr. Frappier’s evidence in-chief concerning the hypotheticals, the trial judge said to the jury:

So ladies and gentlemen of the jury, you’ve heard the recording replayed as you requested. I’d remind you that the defence counsel, Mr. Manishen, cross-examined Mr. Frappier with respect to his evidence in-chief on these hypotheticals and the variables. Consider whether there are parts of that cross-examination that you might wish to replay to provide any needed balance in regard to that evidence in-chief. …

[27] The jury retired. They had no more questions and returned with a verdict about 2 hours and 15 minutes later.

[28] When a trial judge receives a request from the jury for a reading of certain parts of the evidence, the trial judge must provide an answer that is both responsive to the question, and complete and accurate. A full and accurate answer to the question will sometimes require that the trial judge go beyond the four corners of the jury’s request, so that the jury will have other parts of the evidence which materially weaken, explain, or qualify the evidence specifically requested by the jury: R. v. Olbey (1977), 38 C.C.C. (2d) 390, per Martin J.A., at 402; aff’d, , [1980] 1 S.C.R. 1008 at 1027.

[29] The manner in which the trial judge chooses to provide the complete and accurate response to the jury’s question is a matter for the discretion of the trial judge: R. v. Mohamed, 2018 ONCA 966, at para. 279. Sometimes a re-reading of other parts of the evidence will be necessary, other times summaries of that evidence may be appropriate, and in still other situations, reference by the trial judge to the existence of other evidence and the availability of a read back of that evidence may suffice. Combinations of these methods can also be used.

[30] Practical considerations are important. This jury was in the middle of its deliberations. Long delays while counsel scour through extensive testimony for bits and pieces of the evidence which may have relevance to the question posed by the jury is not conducive to effective jury deliberations. While expediency is never justification for not providing a jury with a complete and accurate answer to the question, concerns about unduly interfering with the jury’s deliberations are properly taken into account by the trial judge when deciding the manner in which to respond to the jury’s question.

[31] Because the manner the trial judge uses to provide the full and accurate answer to the jury’s question depends on the specific circumstances, the position taken by counsel at trial is important. In this case, there seemed to be a consensus that it would be difficult and time consuming to go through the extensive cross-examination to find and isolate exact references in the cross-examination that touched on the hypotheticals. When the trial judge expressed that concern, defence counsel, a very experienced criminal litigator, suggested that if the specific parts of the cross-examination could not be readily located, that the trial judge should indicate to the jury that there were areas of the cross-examination that touched on the hypotheticals which could be read to the jury if they so wished. The trial judge followed counsel’s suggestion.

[32] The trial judge’s decision to proceed in the manner suggested by defence counsel, and concurred in by the Crown, did not prejudice the appellant. In argument, counsel for the appellant took the court through lengthy extracts from the cross-examination of Mr. Frappier in an effort to demonstrate material deviations between Mr. Frappier’s evidence-in-chief and his cross-examination. With respect, that effort did not succeed.

[33] In his submissions, counsel for the appellant focused on parts of Mr. Frappier’s evidence which were relevant to whether the stains and semen found on the complainant’s shorts and underwear came from ejaculate or pre-ejaculate fluid. The defence narrative was potentially made more plausible if the stains and semen came from pre-ejaculate fluid.

[34] In examination-in-chief, Mr. Frappier testified to the effect that the size of the stains and the amount of spermatozoa found in the semen were, generally speaking, inconsistent with what would be found if the stains were made by pre-ejaculate fluid. In parts of his cross-examination referred to by counsel on appeal, Mr. Frappier acknowledged that it was “possible” that the stains could have been made by pre-ejaculate fluid.

[35] The cross-examination, although dogged and detailed, did not materially alter Mr. Frappier’s evidence. In his testimony in-chief, he spoke in terms of what one would “generally” find. In his cross-examination, he acknowledged that findings other than those “generally” found were “possible”. That conclusion is self-evident. The cross-examination did not materially alter Mr. Frappier’s evidence on these matters.

[36] It is noteworthy that defence counsel, in closing, did not suggest to the jury that any part of Mr. Frappier’s cross-examination tended to confirm the appellant’s position. The defence argued that Mr. Frappier’s evidence should not be accepted.

[37] The trial judge’s response to the jury’s question did not result in a miscarriage of justice.

B. The Instruction on the Appellant’s Videotaped Statement

[38] The complainant gave a videotaped statement that was admitted at trial under s. 715.1 of the Criminal Code. She also testified.

[39] In the course of his instructions, the trial judge told the jury:

You may also consider what [the complainant] said in the videotape for another purpose. It may help you decide whether or how much you will believe or rely upon [the complainant’s] testimony in this case.

[40] The appellant submits that the above-quoted instruction invited the jury to use the video statement, to the extent that it was consistent with the complainant’s testimony, to bolster the credibility of her in-court testimony.

[41] Statements admitted under s. 715.1 are not treated as prior statements made by a witness. Instead, “the statement becomes part of the child’s in-court testimony as if the child were giving the statements on the videotape in open court”: R. v. F. (C.C.), [1997] 3 S.C.R. 183, at para. 45; R. v. L.O., 2015 ONCA 394, at 43.

[42] Statements admitted under s. 715.1 are admissible for their truth because their proximity to the relevant events renders them sufficiently reliable to warrant admissibility. The statements are best characterized as part of the complainant’s evidence in-chief, and not as prior consistent or inconsistent statements.

[43] To the extent the trial judge’s instructions suggest a mischaracterization of the s. 715.1 statement as a prior statement of the complainant, that mischaracterization had no substantive effect on the instruction. The jury was properly told of the use it could make of the videotaped statement. They were told it was admissible for its truth, and it could be used in assessing the reliability of the complainant’s in-court testimony. The jury were also told to consider the extent to which the s. 715.1 statement was inconsistent with the complainant’s testimony in the witness box. All three instructions are correct: L.O., at paras. 40-44.

[44] The jury were properly instructed on the use of the s. 715.1 video statement.

[45] The appeal is dismissed.

Fairburn A.C.J.O. Doherty J.A. Gary Trotter J.A.

Footnote:

[1] There was no video recording of Mr. Frappier’s testimony, only an audio recording.