CITATION: R. v. J.T., 2015 ONSC 3864

OTTAWA COURT FILE NO.: 11-SA5077

DATE: 2015/06/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

J.T. Applicant

W. Devenz, for the Crown

S. Friedman, for the Applicant

HEARD: April 27, 28,and 29, 2015

application for a stay of proceedings or exclusion of evidence

Kane J.

[1] The Applicant is charged with sexual touching and sexual assault between 2002 and 2010 of two stepdaughters, RL and AL, who at the time would have been 5 to 13 years of age.

[2] The first trial of these charges proceeded on March 3 to 6, 2014 before a judge alone. At that time RL and AL were 18 and 17 years old respectively. A mistrial was ordered on April 8, 2014 at the request of the defence and the consent of the Crown.

[3] A new trial of these charges is scheduled to commence in October, 2015 before a jury.

[4] The Applicant seeks:

1. A Declaration that the Applicant’s rights under ss. 7 and 11 (d) of the Charter have been breached;

2. An Order pursuant to s. 24 (1) of the Charter:

(i) staying the proceedings; or

(ii) alternatively excluding the evidence of the two complainants RL and AL.

[5] The grounds relied upon is the conduct of the two complainants during the first days of the trial of these charges in March of 2014.

[6] The defence relies upon this same March 2014 conduct in the first trial on this application and submits that on days 2 and 3 of that trial, the two complainants contravened the court order excluding witness and a direction to not discuss their evidence.

[7] The contraventions during the first mistrial allegedly consist of:

(a) During a break in her testimony, RL told AL she had testified about a head butting incident involving AL and the accused;

(b) During a break in her testimony, RL expressed embarrassment to AL and the support worker, Ms. L, regarding her appearance in a Facebook picture of herself put to her during cross examination;

(c) During a break in her cross examination, RL expressed to AL, their mother and the support worker, Ms. L, that she was feeling pressure as she believed defence counsel was trying to confuse her on dates. The mother asked RL whether she had her prior written statement to police. AL stated it would be easier if RL had written her statement to police. The mother stated she had written RL’s statement to police because RL cannot write. RL told AL to watch the time frames when she testifies;

(d) While waiting to testify, AL told the Ms. L that the accused had sexually abused her and time of day that occurred;

(e) While waiting to testify, AL advised Ms. L, and then advised the investigating police officer, of an incident when her mother entered her bedroom while the accused was abusing her and her mother must have known about the abuse

(f) While waiting to testify, AL told support worker Ms. L, that AL’s mother must have known the accused was abusing her. Ms. L relayed this information to RL. RL became angry and told AL to state in court that the abuse only occurred when their mother was asleep and that their mother did not know about the abuse;

[8] The defence submits those contraventions by the complaints amount to:

(a) A clear attempt between the complainants to ensure that their evidence matched up;

(b) The two complainants have no compunctions about actively colluding and collaborating during the trial which prevents the accused’s ability to defend against their allegations;

(c) The above unlawful collusion and collaboration occurred in contravention of and despite an order excluding witness and a clear direction from the trail judge to the complainants to not discuss their evidence;

(d) Collusion and corroboration taints the trial process, renders the proceeding fundamentally unfair to the point that a new trial would be contrary to the interest of justice, and

(e) Profoundly impacts the Applicant’s fair trial rights in a catastrophic manner, as the complainants’ credibility is at the very core of the Crown’s case as there is no corroborating physical or testimonial evidence as to their allegations.

[9] The evidence on this application consists of small portions of trial transcripts from the first trial and police notes. It also includes a transcript of the testimony of the support worker, Ms. L at the April 8, 2014 voir dire which contains much hearsay evidence as to what RL, AL and their mother told Ms. L during days 2 to 4 of the first trial.

[10] The use of Ms. L’s hearsay evidence was not objected to or contradicted on this application.

BACKGROUND TO EVENTS OF MARCH 3 TO 6, 2014

[11] The home environment and up bring of the complainants has been difficult, independent of the allegations against this accused.

[12] RL has a learning disorder.

[13] At 12 years of age, AL was delivered by her mother to the CAS regarding inappropriate sexual conduct between AL and her then 7 or 8 year old step brother. AL remained in the custody of CAS for 1 year.

[14] This application and whether to exercise the discretionary remedy sought in s. 24(1) of the Charter must be considered within the context of the following events.

[15] While waiting to testify, AL told support worker Ms. L:

(a) about the accused sexually assaulting her for years,, her act of misconduct when she was 12 years old and that she since is viewed as the black sheep in the family;

(b) that she has been called a whore by her mother and faulted by the mother for the alleged historical abuse by the accused of AL;

(c) that her mother must have seen the accused sexually abusing her when she was young, must have known about it and did nothing to stop the abuse;

(d) that her mother has historical problems with alcohol and suffers depression which the complainants at a young age were forced to deal with;

(e) that AL is deeply disliked by her mother and RL;

(f) that RL and their mother became angry upon learning AL told Ms. L the mother must have been aware of the sexual abuse of AL, that AL should not be saying such things to strangers;

(g) that RL and their mother wanted Ms. L to cease her support role and stop attending the trial, and

(h) that RL posted a message on social media stating, in reference to Ms. L, that strangers had no business in the affairs of this family;

(i) that RL and her mother were jealous that AL was receiving more support than RL from Ms. L; and

(j) that AL did not understand what the judge meant on day 1 of the trial in the direction to not discuss evidence and could Ms. L explain it to her.

[16] As a volunteer support worker, Ms. L did her best since the second day of the trial to provide understanding and direction to the complainants. Ms. L told AL that she too suffered sexual abuse. Independent of the events during the last 3 days of the trial, Ms. L and her organization have provided valuable ongoing support to AL and offered the same to RL. For that, they are to be commended.

[17] Ms. L missed day 1 of the trial, including the judge’s exclusion order and directions to not discuss evidence.

[18] Ms. L has a strong character. She expressed her views on a number of topics to AL, RL, their mother and others. This is not a criticism of the individual, but had Ms. L been present and heard the judge’s directions on day 1 of the first trial, some of the conduct now complained of might not have happened.

[19] By way of example, Ms. L while being supportive and protective of these young complaints:

(a) Asked and discussed with AL at some length how she was feeling, what had happened to bring her to court, how she was dealing with those events, how similar abuse had impacted Ms. L and the community services available to assists abuse survivors recover;

(b) communicated an ultimatum to AL that she either tell the investigating officer immediately about her mother walking in on and being aware of the accused’s abusive conduct, or Ms. Lasse would disclose that information herself to the attending police officer;

(c) told RL about AL’s statement that their mother knew about the abuse by the accused;

(d) asked the mother why in order to protect the children, had she lived in subsidized housing for so many years;

(e) reminded RL, who told AL to not testify their mother knew the abuse was occurring, to stop saying that and that each of them must tell the truth when they testify;

(f) immediately after the above exchange, stopped a physical argument between AL and RL.

[20] The above summaries indicate that much was occurring outside the court room door during the trial, in addition to proceedings which by its nature must rekindle past family grievances and strong emotions. Ms. L stated the 2 complainants were frequently crying outside the courtroom during the last 3 of the trial.

ANALYSIS

EXCLUSION ORDER, DIRECTION AGAINST DISCUSSION OF EVIDENCE

[21] Judges and lawyers due to education, understand the reason for, the importance of and what is meant legally:

(a) by the term “evidence”;

(b) by the tem “testify”;

(c) by an ordering excluding witnesses;

(d) by a court direction to not discuss “testimony” or “evidence”.

[22] Lay people cannot be expected to understand the reason or the full implications of such directions unless they are a) told of such an order and b) told of the direction and c) unless such order and directions are clearly explained to them. That did not occur in the trial.

[23] The order excluding witnesses on day 1 of the trial was apparently announced in the absence of the two complainants and their family members attending. There is no evidence whether such order was communicated to or explained to these complaints.

[24] The investigating officer was examined by the defence on the final day of the trial and asked whether he had told the complainants to not discuss their evidence. The officer answered:

1. Oh, yeah. I mean, we – every – all the time.

[25] When asked what he meant, the officer state:

1. I mean - I mean it’s something that typically I do as an investigator when we’re involved in cases like – and they assure me that they have not spoken about it, about the evidence.

[26] The officer was again asked whether he had told the complainants to not discuss their evidence. The officer replied; “yes”.

[27] Reliance upon what an officer “typically does” carries little weight if any as to what explanation was provided these complainants, one of whom told the support worker on day 4 of that the trial she didn’t understand exactly what the judge meant in the day 1 direction.

[28] The directions by the judge to prohibit discussions of evidence on day 1 to the complainants and their mother were confusing. The judge stated:

(a) It seemed a good idea before beginning the evidence portion of the trial to have a brief chat;

(b) It’s important the court hears evidence of each party and not evidence that’s discussed amongst yourselves;

(c) Those who will be testifying have undoubtedly been told that that you are not to discuss your evidence with anyone else.

(d) That rule carries forward, even during the course of giving your evidence in the trial, and

(e) Even after you have given your evidence, I don’t want anybody to discuss the evidence with any other witnesses;

(f) That doesn’t mean you cannot speak to the support persons around you, but you are not to discuss your evidence with them;

(g) Now you can do that once everybody’s evidence has been completed. Then that prohibition about discussing your evidence is over and you are free to discuss what happened in the courtroom amongst each other, but not until the three of you have testified;

(h) I don’t want to hear that you have you’ve discussed , communicated or disclosed your evidence in the courtroom to anyone else and if you do, the consequences are dire and may include starting over again;

(i) The court thinks you understand. Do you?

[29] In addition to what the Court meant in its use of terms like “evidence” and “testify”, versus what a lay person might understand, this direction raises several potential questions such as:

(a) The judge said I cannot discuss my evidence with other witness, and then stated I could not discuss my evidence with anyone, and then said I could talk to the support person but could not discuss my evidence with them. Is the prohibition limited to other witnesses or everyone?

(b) May I talk to anyone about my past, what happened in the past, such as what happened between my brother and me?

(c) Is this prohibition just against discussing what I or other witnesses say in the witness stand?

(d) May I talk to others about my mother knowing that the accused abused me and why she did not stop that? Is that part of my evidence? I don’t know what I am going to be specifically asked and don’t know therefore what I can talk to others about beyond the accused’s actions against me.

(e) What do I say if the support persons starts asking me what the case is about and whether I was abused and how am I dealing with that?

(f) I am not going to admit to a judge, in front of lawyers and other people that I may not fully understand what is being said. Is there someone who can quietly repeat and explain what is being said?

(g) The judge has just said a lot of things. Is there a card summarizing these points in simple language I can read?

[30] The support worker was not present on day 1 of the trial. She heard none of the above directions by the judge and did what she thought she should do until told otherwise days later.

[31] Defence’s characterization of and how this court should interpret the above conversations or comments against the complainants are inaccurate and exaggerated.

[32] It is illusionary in a case like this to think a mother and 2 daughters have not since police first began their investigation before the trial, ever discussed what happened in the past to you, to me, who knows about it, what is going to happen, etc.

[33] As lay people, the complainants cannot be faulted, as is implied by the defence:

(a) For any confusion as to the terms and implications of the judge’s directions;

(b) For the numerous questions, directions and comments of the support worker who befriended the complainant, including the turmoil the worker’s comments created between AL, RL and their mother in the midst of an already very stressful occasion;

(c) For AL’s disclosure to police that her mother knew the accused was abusing her because the mother had witnessed the abuse happening in response to Ms. L’s ultimatum;

(d) For discussion of not what the accused did to them, but whether their mother should be disclosed as knowing about that conduct and not protecting them.

[34] The trial is about what the accused did and did not do. While recognizing the connection, the primary subject of the discussions in issue between the complainants was about the mother and the support worker, not the accused; as in para 13(b), (c), (d), (e), (f), (g), (h) and (i).

[35] RL’s communication to AL and others that that she testified:

(a) To the head butting incident involving AL,

(b) was having trouble with dates in her testimony;

(c) that AL should watch the time frame; and

(d) that RL was shown an embarrassing photo of herself on Facebook:

are contraventions of the direction to not discuss her “evidence” with “witnesses” or “anyone” until the “end of all the evidence”. That said, only point “a” above relates directly to the allegations against the accused. Points (b) and (d) are not about the accused. Point (c) is generic advice and does not suggest of what to say.

[36] The out of court discussion, not testimony, as to what the mother did or did not know and what she did or did not do, are indirect as to what the accused did or did not do.

[37] What AL may have done as a 12 year old with her brother, independent of any causal relationship Al or her mother may perceive, is factually unrelated to the allegations against the accused. The perpetrators and victims are different. The perpetrators are a 12 year old and an adult.

[38] The judicial system can better prepare these and other witnesses so as to safeguard against events such as occurred during this trial.

[39] The first trial ended in a mistrial 20 months ago. No determination of guilt has been determined. AL since April of 2014 has been living in her own residence.

[40] The defence now has the advantage of the examination in chief and cross-examination of RL as well as a statement from and transcript from the voir dire of Ms. L’s testimony as to what the complainants said to assist in presenting a defence.

[41] The above facts do not constitute:

(a) Deliberate collusion between complainants as to misconduct of the accused;

(b) “conducting a prosecution in a manner that contravenes the community’s basic sense of decency and fair play “which calls” into question the integrity of the system …”: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at para. 63;

(c) “diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness and vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process: R. v. O’Connor, at para. 73;

(d) Abusive conduct as in proceedings which are “unfair to the point that they are contrary to the interest of justice”: R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, at para. 12;

(e) Proceedings which “violate the fundamental principles of justice underlying the community’s sense of fair play and decency.”: R V. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979 at para. 70.

[42] The community and reasonable informed members thereof would be offended and have a reduced level of confidence in the administration of justice if these charges were halted on the facts and context of what happened 20 months ago between a then emotionally charged 16 and 17 year olds.

[43] Consideration as to when a court should exercise it’s discretion pursuant to s. 24(1) of the Charter to halt an abusive prosecution confirms such remedy is unwarranted in this case, as:

(a) The facts and context of these events are not one of the rare and clearest of cases where a stay of proceedings will be required: R. v. Babos, 2014 SCC 16, [2014] S.C.J. No. 16 at para. 32;

(b) There is no reason to believe that the accused’s right to a fair trial has been prejudiced and that such prejudice is ongoing such that such prejudice will be carried forward through the conduct of a new trial: Babos para. 34;

(c) The risk of future harm and now identified can be protected against with a clearer instruction and a structuring of circumstances during the trial in response thereto Supreme Court in Canada (Minister of Citizenship and lmmigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391 at para. 91.

(d) The fact that witnesses discuss evidence in contravention of an order excluding witnesses goes to the weight to be given to such evidence by the trier of fact. An alleged breach of such an order can also be addressed through cross-examination and the weight to be given to such evidence: R v. Emsley, [2007] OJ No 1187 at para 14 and R v. Habib, 2000 CanLII 16824 (ON CA), [2000] OJ No 3036 at para 5(3) (ONCA).

(e) The more conventional approach is to leave it to the trier of fact to determine what weight, if any, is to be given to evidence that is alleged to have been concocted by means of collusion or collaboration: R V Burke, 1996 CanLII 229 (SCC), [1996] 1 SCR 474 at para 45.

(f) Whether outside influences have contaminated a witness’ evidence is a matter which goes to what weight to assign to the testimony of a witness, not the admissibility thereof: R v. Buric, 1996 CanLII 1525 (ON CA), [1996] OJ No 1657 at para 24 (ONCA); affd. [1997] SO No 38.

[44] The actions 20 months ago of these young siblings, as members of a complex volatile family, and acting as they did often in anger and under the supervision and direction of older adults does not constitute intentional collusion which is likely to reoccur and cannot be protected against.

[45] The defence as stated also now has further information to in cross-examine these complainants in defence of these allegations.

[46] For these reasons, the application by the defence is dismissed.

[47] The Court wishes to meet with the two complainants and their mother, separately, as soon as can be conveniently arranged.

[48] Subject to input from counsel:

(a) the complainants are not to be in attendance at the same time at any time between the start and end of this trial.

(b) It is preferable that the mother not attend this trial.

Kane J.

Released: June 16, 2015

CITATION: R. v. T., 2015 ONSC 3864

OTTAWA COURT FILE NO.: 11-SA5077

DATE: 2015/06/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

J.T. Applicant

REASONS FOR decision

Kane J.

Released: June 16, 2015