SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: M172/13

DATE: 20140312

RE: R. v. HERNANI SOUSA

BEFORE: MOLLOY J.

COUNSEL:
Joel Hechter, for the Applicant (Defendant)

Rick Nathanson, for the Respondent (Crown)

HEARD: March 10, 2014

ENDORSEMENT

(Certiorari Application)

[1] Hernani Sousa is one of four persons committed for trial on charges of sexual assault and related charges, all in relation to the same complainant, J.R., who was under the age of 16 at the time. Of the 14 counts on the indictment, Mr. Sousa himself faces five charges including sexual assault and assault, which are said to have occurred on February 14, 2012. The preliminary hearing with respect to all four accused men proceeded before Mr. Justice B. Cavion in June 2013, at the conclusion of which, all four accused were committed for trial on all charges.[^1]

[2] Mr. Sousa now applies to this Court for an order in the nature of certiorari quashing his committal for trial. For the reasons that follow, that application is dismissed.

[3] There is no dispute between counsel as to the test for committal applied by the preliminary hearing judge, nor the test to be applied by this Court on review of that decision.

[4] The question for the preliminary hearing judge is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. There must be some evidence in respect of each essential element of the offence. Credibility is not an issue at this stage. If there is direct evidence on an issue, the preliminary hearing judge makes no finding as to its credibility or reliability. Rather, the question is whether a verdict of guilty could properly be rendered if the evidence is believed. Where there is circumstantial evidence, some limited weighing of the evidence may be permitted, but only to the extent of determining whether the evidence is reasonably capable of supporting the inferences urged by the Crown. If there are competing inferences, the preliminary hearing judge is required to draw the inferences favouring the Crown.[^2]

[5] The role of the reviewing court is a narrow one. The decision of the preliminary hearing judge may only be set aside if he or she committed an error going to jurisdiction. A reviewing court is not entitled to overturn the preliminary hearing judge based on a finding that the hearing judge erred in law, or if the reviewing court would have reached a different conclusion on the matter. Only jurisdictional error will suffice. An error in jurisdiction includes a situation where there is no (as in not even a scintilla of) evidence on an essential element of the offence and a situation in which the hearing judge breached principles of natural justice.[^3]

[6] In this case, the central issue is identification. The defence points to some weaknesses in the complainant’s identification of Mr. Sousa as the man who assaulted her on February 14. However, regardless of those alleged weaknesses, J.R. picked Mr. Sousa’s picture from a photo-lineup. That is direct evidence as to his identity. In addition, there is some corroboration of her evidence with respect to Mr. Sousa’s whereabouts at the construction site at the date and time in question and a statement made to the police by a co-accused (and co-worker at the construction site) indicating that the man who was with J.R. that day was “Hernani”. There is clearly some evidence that Mr. Sousa was the man who committed the assaults on that day, and no basis to set aside the findings of the preliminary hearing judge in that regard.

[7] The main focus of defence counsel on this application was the refusal of the preliminary hearing judge to permit cross-examination of the complainant in the courtroom with respect to certain questions counsel wanted to pose. Defence counsel argues that this curtailment of his right to cross-examine was a breach of natural justice, and therefore an error of jurisdiction warranting quashing the committal.

[8] The complainant in this case was 16 years old at the time of the preliminary hearing and 15 years old at the time of the alleged offences. She testified at the preliminary hearing by closed circuit video link from a room outside the courtroom, as provided for under s. 486.2(1) of the Criminal Code. At the time of the alleged assaults, the complainant was a patient at Sick Kids’ Hospital in Toronto in the Substance Abuse Day Program. She testified that she was addicted to heroin and had been using that drug since she was 14 years old. On the afternoon of February 21, 2012, she became very distraught while at the Substance Abuse Day Program, was seen by a doctor, and then admitted as an inpatient because she was diagnosed as suicidal. It was during this stay in hospital that she first disclosed to police the alleged assaults involving the four accused in this case, all of whom were construction workers at a nearby worksite who she said individually had sex with her on four separate days: February 13, 14, 16 and 21, 2012.

[9] Section 486.2(1) of the Code states:

486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

[10] At the outset of the preliminary hearing, the Crown asked for an Order that J.R. testify from a room outside the courtroom. In that situation, the legislation is mandatory. The preliminary hearing judge was required to grant the request, unless he formed the opinion that to do so would interfere with the administration of justice. All defence counsel consented to the procedure proposed by the Crown. No counsel raised any issue as to whether such an order would interfere with the proper administration of justice.

[11] J.R.’s examination in chief started on June 10, 2012 and ran most of that day (pp. 22-91 of the transcript). All four defence counsel cross-examined her on the second day, June 11, 2012, with counsel for Mr. Sousa (Mr. Giletski) being the last of them. His cross-examination commenced at page 118 of the transcript, about mid-way through the afternoon of that day. That cross-examination continued to page 146 of the transcript, at which point Mr. Giletski sought leave to have the complainant brought into the courtroom for further cross-examination. Between pages 118 and 146, Mr. Giletski’s cross-examination included the following:

• the start time and hours of the program at Sick Kids;

• the number of times J.R. had been to the construction site prior to February 13;

• the number of times J.R. had bummed cigarettes from construction workers;

• the amount J.R. smoked;

• where and how she acquired cigarettes;

• how long she had been smoking;

• how many construction workers she would see in a typical day;

• what the construction workers were wearing on the site;

• the predominant age and colour of the construction workers on the site;

• whether she had a fake I.D. and when she had gotten rid of it;

• her drinking habits and where and how she obtained alcohol;

• whether she had a boyfriend;

• whether she had discussed the alleged assaults with her boyfriend;

• what she was wearing on February 14 (the date of the alleged assault by Mr. Sousa, and the second in the series of four assault incidents);

• what make-up she was wearing and whether she was trying to make herself look older;

• her degree of confidence that the alleged incident with “guy number two” (alleged to be Mr. Sousa) was on February 14;

• her discussion with guy number two about her age;

• where the sexual activity took place and how she and guy number two got there;

• whether he had an accent;

• very detailed cross-examination as to the progression of the sexual activity from French kissing, her performing a blow job, vaginal sex and anal sex;

• whether the penis of guy number two was circumcised and how big it was;

• details of the physical assaults alleged (slapping the complainant in the face, on her back and on her bottom);

• whether and in what manner guy number two ejaculated;

• whether he wore a condom;

• discussions afterwards about payment;

• whether she had ever seen guy number two after February 14 (and her answer that she saw him on February 16 conducting traffic at the intersection);

• the height, weight and physique of guy number two;

• the hair colour of guy number two;

• what guy number two was wearing;

• the age of guy number two;

• her understanding that guy number two was the cousin of guy number one;

• the complexion of guy number two, including cross-examination as to an apparent discrepancy in her description of skin colour in her police statement as compared to her evidence at trial;

• whether guy number two looked middle eastern; and,

• the nature of guy number two’s eyes, which she described as “scary” and “intimidating” and “piercing”;

[12] At this point, Mr. Giletski requested that the complainant be brought into the courtroom so that he could ask her whether guy number two was in the courtroom. He argued that this was important in light of the evidence given by the complainant as to the eyes and skin-tone of her assailant. Defence counsel referred the preliminary hearing judge in particular to the wording of s. 486.2(1) of the Criminal Code, including that it was not automatic that the complainant testify from outside the courtroom if the judge was satisfied that such an order would “interfere with the proper administration of justice.” The Crown objected to this proposal on the basis that it would be intimidating and emotionally devastating for the complainant, with little utility for the defence.

[13] The hearing judge ruled that the complainant was not required to enter the courtroom for cross-examination. His reasons are brief, but appear to be based on the fact that there was little utility to such a step, given that the Crown already had established some evidence identifying Mr. Sousa as guy number two.

[14] Defence counsel now argues that this ruling constituted a serious infringement of the accused’s right to cross-examine and that this resulted in a denial of natural justice. I do not agree.

[15] Counsel for this accused had already conducted extensive cross-examination of the complainant, including on the issue of identification, and in particular on her description of his eyes, skin colour, and age. The issue for the preliminary hearing judge was whether, in these circumstances, permitting the complainant to testify from outside the courtroom would in his opinion interfere with the interests of justice. Within the context of a preliminary hearing and the limited weighing of evidence available to a judge in that situation, the hearing judge was not of the view that the interests of justice required bringing a vulnerable under-age complainant into the courtroom to face her alleged assailant and testify as to whether she could identify him and, if so, why she believed he was the person who assaulted her. That was a decision that was open to the judge on the evidence before him and in the exercise of his discretion. I see no basis to interfere.

[16] I recognize that one of the purposes of a preliminary hearing is to give an accused an opportunity to obtain some discovery of the case against him.[^4] However, it must also be recognized that this type of discovery is not a constitutional right, nor is it the primary purpose of the preliminary inquiry.[^5] Further, any restriction on cross-examination at a preliminary hearing does not necessarily amount to a breach of natural justice. Before there can be a breach of natural justice to constitute jurisdictional error, the interference with the right to cross-examine must be at least “substantial.” Certiorari is not available to review rulings of the preliminary hearing judge with respect to the appropriateness of a line of questioning, made within the scope of his jurisdiction.[^6]

[17] In this case, there was no substantial interference with the accused’s right to cross-examine. Indeed, as I have outlined above, the accused exercised very substantial examination rights including on the very issue raised here, that of identification. The only restriction on that right of cross-examination was the refusal to bring the complainant into the courtroom to see if she was able to make an in dock identification of the accused. Given that there was some positive evidence of identification, the judge’s conclusion on that issue would not have been affected if the complainant was ordered into the courtroom for further questioning, even if in that situation she failed to identify Mr. Sousa as her assailant. In light of the other evidence already before the hearing judge, I do not consider this one restriction on the right to cross-examine as an issue going to jurisdiction, even in the absence of the requirements of s. 486.2(1) of the Criminal Code. However, the situation is even clearer in the situation actually before the court. The hearing judge was weighing the accused’s right to cross-examination against the right of the complainant to give her evidence without being in the courtroom. He exercised his discretion in favour of the complainant. The impact on the rights of the accused was minimal.

[18] This was an exercise of discretion. It was not a breach of natural justice, and the hearing judge did not thereby lose jurisdiction. Further, even though I need not go this far, I find the decision to have been reasonable in all of the circumstances.

[19] Accordingly, the application is dismissed.

MOLLOY J.

Date: March 12, 2014

[^1]: Reasons of Cavion J., Transcript, June 12, 2013, pp. 68-70
[^2]: R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635
[^3]: R. v. Russell, 2001 SCC 53, [2001]2 S.C.R. 804; R. v. Skogman, 1984 22 (SCC), [1984 2 S.C.R. 93
[^4]: R. v. Skogman, 1984 22 (SCC), [1984] 2 S.C.R. 93 at para. 11
[^5]: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 at para. 20; R. v. Girimonte (1997), 1997 1866 (ON CA), 37 O.R. (3d) 617 (C.A.) at paras. 37-38
[^6]: R. v. Russell, supra, at para. 19; R. v. Forsythe, 1980 15 (SCC), [1980] 2 S.C.R. 268; R. v. George (1991), 1991 7233 (ON CA), 69 C.C.C. (3d) 148 (Ont.C.A.) at paras 5-9; R. v. Dawson, 1997 12348 (ON SC), [1997] O.J. No. 2188, 44 C.R.R. (2d) 359 (Ont.Ct.Gen.Div.); R. v. Al-Amoud (1992), 1992 7600 (ON SC), 10 O.R. (3d) 676 (Ont.Ct.Gen.Div.) at paras. 14-15