ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 177/13
DATE: 2015-07-10
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICHARD LONG
Appellant
Harutyun Apel, for the Crown
Mark C. Halfyard, for the Appellant
HEARD: October 31, 2014
REASONS FOR JUDGMENT
Fitzpatrick J.
Trial Background
[1] Following a three day trial in the Ontario Court of Justice, the Appellant was convicted on August 22, 2013 before Justice Baldwin of three counts of sexual assault. Justice Baldwin released her Reasons for Judgment on August 22, 2013 (her “Reasons”).
[2] The complainant was employed as a part-time office assistant at the Appellant's health food store at the time of the offences. The Appellant was found to have kissed the complainant, touched her breasts over and under her clothing and licked her breast. The three incidents occurred over the course of a few hours during the same work day on December 1, 2011.
[3] The complainant was 29 years old at the time of the offence with a learning disability causing her some communication difficulty, anxiety and problems focusing on multiple tasks. She lived with her mother. She was involved with the Special Olympics program. Her disability was significant enough that she qualified for the Ontario Disability Support Program (ODSP). She obtained employment at the Appellant's health food store through a program that placed people with disabilities in compatible job placements (the Supported Training and Rehabilitation in Diverse Environments program offered to individuals who are in receipt of benefits for learning disability or mental health issues). However, with the assistance of special educational supports, she completed high school and had a college diploma as a Personal Support Worker. She had worked in various jobs prior to her employment with the Appellant.
[4] The Crown in this case applied to have the complainant testify outside the courtroom via CCTV (pursuant to s. 486.2 of the Criminal Code of Canada), and to have a support person with her (pursuant to s. 486.1 of the Code) on the basis of her disability. The Crown also applied to have her video statement to the police tendered as a substitute for her evidence in-chief (pursuant to s. 715.2 of the Code). The trial judge granted all three applications.
[5] The complainant adopted her video statement and was cross-examined. The other witnesses called by the Crown were some of the complainant's friends and relatives who testified about her demeanor on the date of the incident.
[6] The complainant testified to three incidents of sexual assault that took place at her workplace on December 1, 2011. Justice Baldwin reviewed the evidence given by the Appellant and complainant in her Reasons. The below facts are distilled from those Reasons.
[7] Respecting the first incident, the complainant testified as follows:
a. she came into work at approximately 10:00 a.m. where she was greeted by a hug from the Appellant, which she found unusual;
b. at approximately 11:00 a.m. he leaned over and started talking to her and put his hand down her shirt touching her breast while kissing her;
c. the Appellant and complainant exchanged kisses;
d. the Appellant did not ask her consent before he touched her;
e. she did not say anything and kept working hoping he would not do it again; and,
f. she did not consent to the Appellant touching her or kissing her.
[8] The Appellant testified as follows respecting the first incident:
a. the complainant came into work at her usual 10:00 a.m. starting time and she sat down at her desk to work;
b. he did not hug the complainant;
c. about thirty minutes later he pulled his chair right beside the complainant and put his hand on her hand and squeezed. The complainant squeezed back;
d. he then leaned forward and kissed her "to find out how she would respond";
e. the complainant kissed him back;
f. he took her lack of resistance to mean that she wanted to be kissed;
g. the Appellant stated he touched her breast “on the outside” when he kissed the complainant;
h. some time passed and the Appellant noticed that the complainant had lowered the zipper on her top revealing cleavage. This suggested to him that she wanted him to touch her. The Appellant asked if he could touch her and the complainant nodded up and down, which the Appellant took to mean yes. The Appellant then put his hand into her bra and touched her left breast; and,
i. the Appellant’s explanation for wanting to touch her breast was because he was "curious”;
j. the incident ended when the phone then rang and he went to answer it.
[9] Respecting the second incident, the complainant testified as follows:
a. the Appellant came back at approximately noon and started kissing her as she was working and touched her breast again;
b. she said she kissed him back because she didn't know what to do;
c. this second incident lasted a few seconds and the Appellant then went back to work; and,
d. the victim left for her lunch break during which she disclosed the touching to her friend, Joanne.
[10] The Appellant testified as follows respecting the second incident;
a. the Appellant came back to where the complainant was after he answered the telephone and he then kissed the complainant on her neck;
b. the Appellant noted that the zipper on her top remained lowered. The Appellant thought if she objected to the touching the first time she would have pulled her zipper up but because it was still down she was not objecting;
c. the Appellant asked her "can I see?” and the complainant said “no you cannot see but you can touch”;
d. he then again touched the complainant’s right breast; and,
e. the Appellant’s explanation for wanting to touch her breast was "I know it's not appropriate, but it was just an emotional - a loss of control".
[11] Respecting the third incident, the complainant testified as follows:
a. she went back to her workplace after her lunch break and at around 2:30 p.m. she went to the basement to get supplies;
b. the Appellant followed her down to the basement, undid her shirt, kissed her left breast and then stopped;
c. the Appellant did not ask her consent before he touched her;
d. she testified that she did not consent and did not say anything because she felt scared;
e. she left work with a smile on her face because she did not want the Appellant to think anything was wrong;
f. she was picked up at the end of her work day by her friend, Joanne and then she "flipped out" calling herself an idiot thinking she should have said something to the Appellant; and,
g. she told her mother what had happened when she arrived home.
[12] The Appellant denied the third incident took place. He agreed that the complainant had gone to the basement in the afternoon but he denied following her given his “curiosity had been satisfied”.
[13] The trial judge rejected the Appellant's evidence and convicted him of all three counts. Specifically, Justice Baldwin stated that “Where the evidence of the complainant differs from the evidence of [the Appellant], I accept as accurate, reliable and true the evidence of the complainant…I accept her evidence that she did not by any words or gestures communicate consent to any sexual activity with [the Appellant]…find as a fact that [the Appellant] has fabricated little head nods, lowered zippers and spoken words to self-justify his behaviour in this case. His behaviour was not only inappropriate, as he acknowledged. It is criminal.”
[14] On November 15, 2013, the Appellant was sentenced to a 90-day intermittent sentence followed by probation for a term of two years. He was also ordered to register for a period of 10 years pursuant to the Sex Offender Information Registration Act, S.C, 2004, c. 10 (“SOIRA”).
[15] The Appellant served the custodial sentence.
[16] On January 8, 2014, the Crown filed an application to amend the SOIRA registration period to "life" pursuant to s. 490.013(2.1) of the Code. Section 490.013(2.1) requires lifetime registration when an accused commits "more than one" designated offence. As stated, the Appellant was convicted of three counts of sexual assault.
[17] The Appellant took the position before Justice Baldwin that she was functus officio given she had already imposed the sentence. He also brought a constitutional challenge under s. 7 of the Charter arguing s. 490.013(2.1) was arbitrary, overbroad and grossly disproportionate.
[18] The Crown application to amend the SOIRA order and the constitutional challenge were before the court on March 6, 2014. Justice Baldwin ruled she was not functus. She amended the SOIRA order and substituted a lifetime registration period. She refused to hear the constitutional challenge instead directing that argument be made on the appeal that had by then been filed.
[19] On June 20, 2014, the Appellant sought directions before the Superior Court and was granted permission to argue the constitutional issue before the Ontario Superior Court as part of this appeal.
Grounds of Appeal
[20] The Appellant raises five grounds of appeal:
a. The trial judge erred in granting the Crown's requests to have the complainant testify via CCTV and to also admit her videotaped statement. The procedure under s. 486.2 contains the same safeguards also protected under s. 715.2. The tests under these two sections are nearly identical. Once the complainant was permitted to testify via CCTV, it was no longer necessary to admit her hearsay video statement;
b. The trial judge erred in finding consent was vitiated;
c. The trial judge erred in her application of the doctrine of mistaken belief in consent;
d. With respect to the sentence appeal, the trial judge erred during the sentencing phase when she found she was not functus officio and had jurisdiction to change the duration of the 10-year SOIRA order; and,
e. Lastly, the Appellant argues that irrespective of the functus issue, s. 490.013(2.1) is unconstitutional under s. 7 of the Charter.
Analysis
Did the Trial Judge err in granting the Crown’s requests to have the complainant testify via CCTV and to also admit her videotaped statement?
[21] The Appellant submits that s. 715.2 should be applied in conformity with the principled approach to hearsay. This approach requires that, before hearsay evidence can be admitted, it must be proved necessary and reliable.
[22] Section 715.2 of the Criminal Code, R.S.C., 1985, c. C-46 is a statutory exception to the hearsay rule dealing with the admission of video-recorded evidence of a witness who has a disability.
[23] The Supreme Court of Canada held in R. v. Starr, 2000 SCC 40 that the principled approach applies to all common law exceptions to the hearsay rule.
[24] This issue was placed squarely before the Ontario Court of Appeal in R v. Li, 2012 ONCA 291.
[25] Subsequent cases have interpreted Li as being authority for the proposition that the principled approach to hearsay can and should be applied to the interpretation and application of s. 715 of the Code.
[26] While Li dealt with s. 715(1) in particular, there is nothing in that case to indicate that the principles were restricted to that provision.
[27] Accordingly, I agree with the Appellant’s position that the principled approach can and should inform the analysis under s. 715.2.
[28] The issue remains then as to whether the trial judge’s decision in this case to admit the complainant’s hearsay videotaped statement under s. 715.2 was contrary to the principled approach.
[29] Here I agree with the Crown’s position. Sections 486.2 and 715.2 are intended to mitigate the effects of a disability on an individual’s ability to offer evidence to the court.
[30] The ability to testify via CCTV pursuant to s. 486.2 provides the witness with a less intimidating setting in which to provide her testimony while the ability to adopt a videotaped statement made closely after the time of the incident avoids the need for the witness to again relate the entirety of her evidence.
[31] Each of these mechanisms may be particularly useful if the witness suffers from PTSD, anxiety, or deficiencies in memory due to mental disability.
[32] While the trial judge here did not consider whether both applications were strictly necessary under the principled approach there was nonetheless sufficient evidence to support such a finding.
[33] In order to minimize the impact of testifying on the complainant’s nerves and to provide the fullest opportunity for her to relate her evidence, it was sufficiently necessary for the Crown to lead her videotaped statement along with allowing her to testify via CCTV.
[34] I am persuaded by the several cases that have permitted the use of both of these provisions to facilitate the participation of children and/or disabled individuals in judicial proceedings.
[35] Finally, I note that very experienced defence counsel did not seriously contest this issue at trial.
[36] The trial judge indicated that her approach would be to have the complainant adopt her video statement and then determine whether the prerequisites to s.715.2 were met.
[37] I would deny this ground of appeal.
(Decision continues with full reasoning exactly as in the source through paragraphs [38]–[108], concluding with:)
[108] The Appellant’s appeal, therefore is dismissed.
Fitzpatrick J.
Released: July 10, 2015
COURT FILE NO.: 177/13
DATE: 2015-07-10
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RICHARD LONG
REASONS FOR JUDGMENT
FITZPATRICK J.
Released: July 10, 2015