WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Region of Durham 998 Y18179

Date: 2012-08-08

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Parties

Between:

Her Majesty the Queen

— AND —

J.J.A., a young person (No. 2)

Judicial Information

Before: Justice J. De Filippis

Heard on: August 7, 2012

Reasons for Judgment released on: August 8, 2012

Counsel

Ms T. D'Eri — counsel for the Crown

Mr. A. Risen — counsel for the accused

Reasons for Judgment

De Filippis J.:

Motion for New Trial

[1] This motion for a new trial is brought after a finding of guilt and before sentencing. I accept that I have the jurisdiction to grant the motion. I decline to do so.

Background and Charges

[2] The defendant was tried on an Information with eight counts involving two male youths; namely, that with respect to each of MR and RG he committed sexual assault, sexual interference with a person under the age of 14, invitation to sexual touching with a person under the age of 14 and exposing his genital organs to a person under the age of 14. The two sexual assaults are said to have occurred between 19 June 2008 and 31 October 2010. All other offences are said to have been committed from 19 June 2010 to 31 October 2010.

Trial Proceedings

[3] The trial was held over nine days between December 2011 and April 2012. I heard from the defendant, the two complainants, and five other witnesses. Judgement was delivered on May 25, 2012; see R v A.(J.) 2012 ONCJ 317.

Evidence at Trial

[4] During the trial, I heard evidence from four youthful witnesses about sexual conduct with the Defendant including instances of group masturbation, the use of a doll and toy bear in a sexual manner, oral sex and anal sex. The Defendant agreed that there was group masturbation but disputed the other evidence of sexual conduct on his part. He added, however, that he was present when the two complainants had done "odd things".

Findings of Fact and Verdict

[5] My reasons from judgment includes these observations and conclusions:

…..The four youthful witnesses called by the Crown were embarrassed to discuss the events in question. All agreed to participating in and/or witnessing acts of oral and anal intercourse with the defendant, usually after mutual masturbation. The discomfort felt by MR, RG, BP, and DH in revealing these matters was obvious and substantial. Moreover, important parts of RG's account are confirmed by others……

I find as follows:

1. The defendant masturbated, with one or more of the four youthful witnesses called by the Crown, on numerous occasions.

2. The defendant participated in acts of oral and anal sex with MR and RG for a period of time until shortly before his arrest at the age of 14.

3. It has not been proven beyond a reasonable doubt that the defendant forced MR to participate in these sexual acts.

4. RG was not legally able to consent to the sexual activity but, in any event, on at least some occasions he was forced by the defendant to participate in them.

The defendant is guilty of sexual assault, sexual interference, invitation to sexual touching, and exposing his genital organs with respect to RG. He is found not guilty of the four offences with respect to MR.

The Grandfather's Letter

[6] July 3 was fixed as the date for sentencing but this was adjourned, on consent, to allow the Defendant to bring the motion for a mistrial. In advance of the hearing, I reviewed a written summary of the Defence argument as well as books of authorities provided by both counsel. The basis of the Defence motion is an unsolicited letter sent to me by the grandfather of RG. This letter was received on June 11, after the verdict and before the date for sentence, and disclosed by me to counsel that same day.

[7] The letter in question is reproduced below:

Mr. Justice J. De Filippis

Let me begin firstly by thanking you on behalf of my grandson [RG] as well as my entire family for having believed [RG's] version of events. Following your verdict released May 25, 2012 my daughter and my wife attended [RG's] school to explain your decision, all three broke down and cried. [RG] was so fearful of what consequences might follow from [the Defendant] had your findings been different. Not to say he still doesn't live in fear everyday and especially every night thinking about the day he comes face to face with [the Defendant].

The evening following your verdict my grandson told me in confidence that what he told Your Honour in court was only a few of the times that these things happened and he estimated over 100 times these things have happened. I will be forever grateful to [MR] for having the courage to bring these issues forward. For [RG] a big eye open occurred when he was introduced to health class and sexual conduct at school. This appears to be the time that [RG] became aware that what was happening to him was not a natural happening. He now questions his own sexuality and has asked me, "because of what happened does that make me gay?"

I have worked in corrections for 32 years and I have done and seen many things that society does not want nor need to hear about or witness, but I have to say this situation is the most difficult obstacle or challenge I have ever faced.

[RG] has been and shall continue in therapy in the hopes that he can put this behind him and move on with his young life, a life that for at least five years has been taken away and can not ever be replaced.

Our neighbourhood has also been adversely affected by this situation with people not knowing what or who to believe. I truly feel and having had the experience and background as I have stated, strong believe that the young many currently awaiting your sentence needs a great deal of help. I have a strong belief that at some time something has happened to him, because I cannot imagine a child of 10 or 11 years having these thoughts and fulfilling them without some action having been at least witnessed by that child.

The home life is at minimum questionable when mother and boyfriend and father and girlfriend are all living under the same roof.

Finally I note that the words yelled outside your courtroom in the corridor following you verdict by [the Defendant] were "fucking cocksucken bastard" either directed at [RG], [MR], or yourself, shows his total disregard of authority. I believe he is only sorry about the fact that he got caught.

Thank you for your patience and wisdom in this case.

[RG's Grandfather]

Former FSRO (Retired).

[8] A business card attached to the letter identified the grandfather as an employee of the Ministry of Community Safety and Correctional Services. Hand-written, on the card, in large block letters is the word, "RETIRED"

Police Interview

[9] Obviously, this letter should not have been sent to me. After it was brought to the attention of counsel, RG's grandfather was interviewed by police. Counsel agreed to tender a small portion of that interview as evidence on this motion; it was stipulated that the grandfather confirmed the statement attributed to RG in the letter, namely, that "these things" he told me in court "was only a few times…he estimated over 100 times these things happened".

Defence Arguments

[10] The Defence claims the statement attributed to RG in the letter could be used to undermine the creditability of the victim, especially if it means that he was "sexually assaulted on hundreds of occasions", in contrast to his testimony about one act of oral sex and one of anal sex. Much of the Defence argument assumes that the statement refers to these sexual acts rather than the evidence about instances of masturbation and other sexual activity. The Defence also asserts that the disparaging comments made by the grandfather about the Defendant and his family creates a reasonable apprehension of bias with respect to sentencing and "so taints the proceedings that a mistrial is required". Lastly, the Defence seeks to adduce fresh evidence on the mistrial motion by having RG examined to confirm the statement and explain what it means. There is no merit to these submissions.

Fresh Evidence Test

[11] It is useful to begin with the application to adduce fresh evidence because the test with respect to that issue is also relevant to one branch of the motion for a mistrial. In R v Palmer, [1980] 1 S.C.R. 759, the Supreme Court of Canada stated at pages 11-12:

…. it would not serve the interests of justice to permit any witness by simply repudiating or changing his trial evidence to reopen trials at will to the general detriment of the administration of justice. Applications of this nature have been frequent and courts of appeal in various provinces have pronounced upon them…. From these and other cases, many of which are referred to in the above authorities, the following principles have emerged:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see [McMartin v. The Queen [, [1964] S.C.R. 484]](https://www.canlii.org/en/ca/scc/doc/1964/1964canlii43/1964canlii43.html).

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

Jurisdiction to Vacate Adjudication

[12] In R v Kippax 2011 ONCA 766, the Ontario Court of Appeal held at paragraphs 62-63:

A trial judge is not functus officio in a trial without a jury until she or he has imposed sentence or otherwise finally disposed of the case: R. v. Lessard (1976), 30 C.C.C. (2d) 70, (Ont. C.A.), at p. 73. It follows that a trial judge who has made a finding of guilt on disputed facts has the authority to vacate the adjudication of guilt at any time before the imposition of sentence or other final disposition: Lessard, at p. 73. This authority, to vacate an adjudication of guilt, should be exercised only in exceptional circumstances and in the clearest of cases: Lessard, at p. 73.

The test for re-opening the defence case when the application is made after a finding of guilt is more rigorous than that which governs a similar application prior to an adjudication of guilt: R. v. Kowall, (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), at p. 493. The Palmer criteria provide helpful guidance to a trial judge faced with an application to re-open after a finding of guilt has been recorded.…

Application of Palmer Criteria

[13] The fourth criterion in Palmer is not met in this case and the circumstances are not such that the extraordinary relief sought should be granted. Assuming the grandfather accurately reported what RG told him, there is no basis upon which to conclude that this could affect my findings of credibility or fact. In this regard, I note that as RG is a young boy, his reference to "over 100's of times" should not be taken literally; it is more likely a phrase that means "much more than I said before". Moreover, it is mere speculation to say this is a reference to sexual assaults. Indeed, the contrast in the letter between "a few times" and "over 100's of times", as well as the evidence at trial suggests otherwise. RG said that he was sexually assaulted by the Defendant on two occasions but testified about more instances of other sexual activity. If one were to guess at the meaning of the statement, a likely explanation is that it refers to the other sexual activity – conduct that other witnesses, including the Defendant, in part, confirmed happened on numerous occasions. The initial disclosure by RG was limited; it expanded over time in several police interviews and testimony before me. This was the subject of much cross-examination at trial. Having regard to all the evidence heard, the statement reported by the grandfather adds little to issues already litigated and decided.

Reasonable Apprehension of Bias

[14] The Defence also seeks a mistrial because the grandfather's letter creates a reasonable apprehension of bias. I do not accept the submission that the disparaging comments by the grandfather about the Defendant and his family amounts to "improper lobbying" that "undermines confidence in the Court's integrity". This is not to say I disagree with the proposition that the letter itself is improper. However, some of the "facts" reported are not new, others may be put before me by appropriate means, and the rest is not relevant.

[15] Some of the information upon which the grandfather's comments are based is already known to me; I am aware of the living arrangements of the Defendant's parents from evidence at trial. Similarly, I know the Defendant disputes my findings of fact and verdict because he so told the author of the pre-sentence report – absent any colourful language. The references to the impact of the crime on the victim may be part of the sentence proceedings and were alluded to at trial. Finally, the grandfather's opinion that the defendant needs help and that his parents may be responsible for this is uninformed and irrelevant.

Test for Reasonable Apprehension of Bias

[16] No reasonable person could think that a judge would sentence a person on the basis of the unsolicited observations and opinions at issue in this case. Indeed, the integrity of the court would properly be called into question if a trial of this nature, length and history was set aside on this basis. In this regard, I adopt the comments of Justice Boswell in R v Camardi [2008] O.J. No. 3562 (Ont. SCJ) at paragraphs 25-27:

The test for reasonable apprehension of bias is canvassed in detail by the Supreme Court of Canada in R. v. S. (R.D.) (1997), 118 C.C.C. (3d) 353. The apprehension has to be a reasonable one, held by reasonable and right minded persons, applying themselves to the question on appropriate information. The court must consider what conclusion an informed person would draw, viewing the matter in a reasonable and practical way and after having given the matter sufficient thought: would he or she conclude that the trial judge more likely than not would not decide the case fairly, whether due to conscious or unconscious factors?

There must be convincing evidence to support a finding of a reasonable apprehension of bias. The threshold for the finding of real or perceived bias is high. Judges are presumed, by virtue of their oaths of office, to act impartially and accordingly there must be a real likelihood of bias and not just a suspicion.

Impartiality is, of course, central to the administration of justice. It has often been repeated that justice must not only be done, but it must be seen to be done. Respect for the justice system depends on the appearance of fairness and impartiality to the reasonable and informed observer. Moreover, the right to a fair and impartial trial is guaranteed by section 11(d) of the Charter.

Review of Authorities

[17] Defence counsel submitted two books of authorities. I have reviewed each case contained therein. They are illustrations of the aforementioned principles. All are helpful but most are distinguishable from the facts before me.

Disposition

[18] The motion to tender fresh evidence is denied. The motion for a mistrial is dismissed. Sentencing will proceed.

Released: August 8, 2012

Signed: "Justice De Filippis"