Court File and Parties

COURT FILE NO.: CR-22-67 DATE: 20240918 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – J.B. Defendant

Counsel: Linsay Weis, for the Crown Edmund Chan, for the Defendant

HEARD: July 30, 2024

Reasons for Judgment

NOTE: This ruling is being delivered orally today; however, the written version is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the written version that is the official record to be relied upon.

CASULLO J.

Overview

[1] J.B. brings this application to reopen the trial to permit him to admit fresh evidence. J.B. ultimately seeks a mistrial.

[2] The application is grounded on two paragraphs contained in the Victim Impact Statement (“VIS”) submitted by the complainant, B.B., pursuant to s. 722 of the Criminal Code of Canada.

Background

[3] J.B. was charged with sexual assault contrary to s. 246.1, sexual intercourse with a female under 14 contrary to s. 146.1, sexual interference contrary to s. 151, indecent assault contrary to s. 149, incest contrary to s. 150 of the Criminal Code, and invitation to sexual touching contrary to s. 152.

[4] The Crown’s only witness was the complainant, B.B. [1]

[5] J.B. testified in his defence.

[6] Following a five-day, judge-alone trial, I found J.B. guilty on each count.

[7] The sentencing hearing was scheduled for May 4, 2024. Prior to the hearing, J.B. served notice of the application.

[8] J.B. has not been sentenced.

The Impugned Paragraphs

[9] B.B.’s lengthy VIS contained the following two narratives:

My first sexual experience was at the hands of my father. My virginity was taken by my father, that event left my vagina torn open and bleeding. I had to deal with it on my own because I couldn’t go to my mom for help and when my mom did see blood on my underwear, I had to lie about it (I hadn’t started menstrating [menstruating] yet) so I wouldn’t get my father or me into trouble.

…My vagina had countless rips, tears, scratches, infections (because his hands were dirty from being a mechanic). There would be times that my father was touching my vagina and there wouldn’t be enough time in between “events” for my vagina to heal and he would be touching me again and it would feel like a cheese grater being rubbed against my vagina. I have been repremanded [reprimanded] by my teachers for standing up during class because my genitals hurt too much to sit down. I have been repremanded [reprimanded] at school for appearing as though I was touching myself but I was actually trying to keep my underwear from touching my vagina and stinging me. I would sit in burning hot bath water so I couldn’t feel the sting and burn like I normally did on the toilet.

[10] The defense submits that these paragraphs contain new information that has come to light for the first time.

[11] Following receipt of the VIS, J.B. sought out information alleged to be inconsistent with the VIS and commenced this application.

[12] The information obtained is contained in an affidavit sworn by Kathy Mihelic, a law clerk in Mr. Chan’s office. Thus, the affidavit is simply a third-party account of L.B.’s retort to the two paragraphs set out above. L.B. is B.B.’s mother.

[13] Ms. Mihelic reports that:

• L.B. was adamant that she had never discovered blood in B.B.’s underwear, and B.B. had never disclosed a situation of that sort during the years in question, or at any time. If this had happened, this would surely stick out in L.B.’s mind.
• L.B. advised that B.B. had never complained of vaginal soreness, discomfort, or infections in that region while he was a child. B.B. never complained of any vaginal issues. L.B. confirmed she had never taken B.B. to the doctor for treatment in relation to vaginal issues during the years in question.
• L.B. said that B.B. consistently did well in school. L.B. had never been spoken to by a teacher or staff member about any inappropriate behaviour during B.B.’s elementary school years. Further, B.B. never disclosed to her any incidents of being reprimanded at school.

Issue

[14] The issue for me to determine is whether J.B. has met the legal test for reopening the trial after my finding of guilt, but prior to sentence being imposed.

Applicant’s Position

[15] J.B. submits he has met the legal test for reopening the trial.

[16] J.B. further submits that he has met the test to introduce fresh evidence, which has a direct bearing on two trial issues: (1) whether the sexual assault happened, and (2) B.B.’s credibility.

[17] In the first impugned paragraph, B.B. is speaking about the first time J.B. penetrated him. This was explored in detail at the trial, both in-chief and during cross-examination. B.B.’s evidence was that after the assault, he went into the bathroom. The Crown did not follow up and ask B.B. whether he had sustained any injury.

[18] Likewise, the defence did not ask B.B. about any injury following this assault. Mr. Chan submits this was a tactical decision, as he was not prepared to solicit incriminating evidence against J.B. that the Crown should have elicited.

[19] If I were to find there was a lack of due diligence, and defence should have explored what happened in the aftermath of this particular assault, this failure does prevent the evidence from being admitted.

[20] In the second impugned paragraph, B.B.’s statements about what happened at school could not have happened, according to L.B. L.B. was never contacted by the school about B.B. displaying any inappropriate behaviour. Defence submits that the court should assume the parents would have been notified if a teacher saw B.B. touching himself.

Crown’s Position

[21] The Crown submits that J.B. has failed to meet both tests. Thus, the application to reopen the case should be dismissed, and my finding of guilt should stand.

[22] According to the Crown, the defence failed to exercise due diligence. The impugned evidence should have been adduced at trial. The defence was clearly free to cross examine B.B. on whether he sustained any injury after the first penetrative, or indeed any, sexual assault. This is an obvious line of questioning when the victim is a child and the abuser an adult.

[23] During his cross-examination B.B. specifically testified that “it felt like my vagina ripped”. The decision not to follow up on this question was a tactical one that J.B. is now trying to reverse.

[24] Most importantly, however, the Crown submits that the fresh evidence the defence seeks to introduce would not affect the credibility of B.B., and thus would not have affected the result.

[25] In the alternative, if I do determine that the case should be reopened, the appropriate remedy would be a recalling of the evidence, or a calling of fresh evidence, or a combination of both. In these circumstances, a mistrial is not warranted.

Analysis and Findings

[26] A trial judge in a non-jury trial has the power to vacate an adjudication of guilt at any time before sentence is imposed: R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73.

[27] However, as Martin J.A. cautioned, this power “should only be exercised in exceptional circumstances and where its exercise is clearly called for”: Lessard, at p. 73.

[28] In Griffith, the Court of Appeal confirmed that Lessard has “stood the test of time,” and reiterated that “it will only be in very rare cases that a judge would reopen a conviction”: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at paras. 21 and 23.

[29] The test for reopening a case following a finding of guilt is more rigorous than the test to reopen a case prior to a finding of guilt. This is so in order to protect the integrity of the process, including the enhanced interest in finality: R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), at p. 493.

[30] In R. v. H.S., 2023 ONCA 805, at para. 27, the Court of Appeal held that trial judges should not act as an appellate court:

As the court recently affirmed in R. v. A.I.B., 2023 ONCA 557, at para. 22, the power of a trial judge to vacate an adjudication of guilt after a trial, and before a sentence is imposed, should only be exercised in exceptional cases and where its exercise is clearly called for. This should occur only in very rare cases, given the justice system’s strong interest in finality, as well as institutional concerns arising from the fact that trial courts ought not to assume the functions of an appellate court.

[31] The criteria to be applied on application to reopen a case based on new evidence is set out in Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775:

(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.

(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.

[32] On such applications, the judge must consider whether the defence is attempting to reverse a tactical decision made at trial: Kowall, at p. 493.

[33] If the test to reopen is met, then the judge shall consider whether to carry on with the trial, or declare a mistrial: Kowall, at p. 494.

[34] In H.S., at para. 30, the Court of Appeal held that in instances where an applicant seeks to reopen a case based on a VIS, additional considerations should be brought to bear:

[W]here an appellant seeks to vacate a conviction on the basis of a complainant’s VIS, the test in Palmer v. The Queen, [1980] 1 S.C.R. 759, for adducing fresh evidence should be applied with the following considerations in mind:

(i) the alleged inconsistency between the VIS and the complainant’s evidence at trial should be plain and obvious;

(ii) the relevant portions of the complainant’s trial evidence must have played a central and essential role in the trial judge’s reasoning leading to a conviction; and

(iii) the obviously inconsistent statement(s) in the VIS, had they been known at the time of the trial, would likely have affected the result.

[35] The court also affirmed, at para. 28, that there were sound policy reasons why this should be so:

The principle that trial judges should vacate a conviction only in “very rare cases” applies with particular force where an accused seeks to reopen the case based on a complainant’s VIS. Parliament’s purpose in providing for the introduction of such statements was to give victims a voice in the criminal justice process, to provide a way for them to confront offenders with the harm they have caused, and to ensure that courts are informed of the full consequences of the crime. If victims could routinely be cross-examined based on an alleged inconsistency between their VIS and their trial evidence, they would be discouraged from offering such statements and risk being revictimized through any subsequent cross-examination.

Palmer Analysis

[36] I will apply each of the Palmer criteria in turn.

Due Diligence

[37] The applicant did not exercise due diligence. The evidence J.B. seeks to admit could have been adduced at trial. An obvious line of questioning would be whether B.B. sustained injury at the hands of his father. B.B. testified to numerous incidents of being hurt by J.B. For example, B.B. testified that after J.B. fondled his clitoris and put his fingers in his vagina, it would hurt B.B. to pee. Further, B.B.’s genitals would be so raw from his father’s fingers on and in him that it hurt when his underwear touched his genitals.

[38] Defence’s decision not to enquire any further about these injuries can be characterized as a tactical decision. Applications to reopen a trial should not seek to redress such choices. However, I pause to note that in the criminal context, this is not fatal to such applications: Kowall, at pp. 493-94.

Relevancy

[39] Given that B.B.’s credibility was a central and decisive issue at trial, the second criterion is met.

Credible

[40] The third criterion is also met. L.B.’s evidence may be reasonably capable of belief if, on the stand, she gives credible evidence and can withstand cross-examination.

Affected the Result

[41] If I were to reopen the trial and allow L.B. to testify on these issues, her evidence could not reasonably be expected to have affected the result, particularly when considered with the other evidence at trial.

[42] Neither the evidence that L.B. never saw blood on B.B.’s underwear, nor the evidence that B.B.’s school did not contact his parents to report instances of B.B. touching himself, gives rise to a reasonable possibility that I would have assessed B.B.’s credibility differently.

[43] B.B. stated in his VIS that he could not go to his mother for help. That is not at odds with his evidence at trial. Further, L.B. said she never saw blood in B.B.’s underwear. There are myriad reasons why this might be the case. B.B. stated that he had to lie to his mother. So perhaps he lied and said it was not blood.

[44] B.B. was also very clear in his trial testimony that at times, his vagina would be so raw his underwear hurt him. The fact that he may have been trying to avoid this at school by moving his underwear away from his vagina actually supports his evidence and bolsters his credibility.

[45] Further, the fact that L.B. believes B.B. never saw a doctor for vaginal issues is not incongruous. For years, B.B. did not disclose the abuse to his mother, and he dealt with the aftermath of the sexual assaults on his own. He described taking hot baths to numb the sting. If L.B. did not take B.B. to the doctor for vaginal issues, it was because L.B. was unaware B.B. was experiencing them.

[46] I can say with certainty that L.B.’s evidence on these two points would not have affected the outcome.

H.S. Analysis

[47] I turn now to consider the additional criteria set out in H.S., given that J.B.’s application to reopen is based on information contained in B.B.’s VIS. Again, I will address each consideration in turn.

Plain and Obvious Inconsistency

[48] I find there is no inconsistency between the VIS and B.B.’s evidence at trial. The blood on B.B.’s underwear happened after the first time he was penetrated by J.B. B.B. testified that after the assault, he went into the bathroom. He was not asked whether he sustained an injury, or whether there was any blood. Thus, the information in the VIS that there was blood is not contradicted.

Central Role

[49] Given that there was no inconsistency, the evidence concerning blood in the underwear or the school’s lack of involvement did not play a central role in my reasoning.

Affected the Result

[50] Again, there was no inconsistency which would likely have affected the result.

Conclusion

[51] Section 722 (1) of the Criminal Code provides for the use of victim impact statements on sentencing:

When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.

[52] As the Court of Appeal held in H.S., a VIS gives victims a voice in the criminal justice process.

[53] In other words, providing a VIS is a victim’s opportunity to describe for the court the impact of the offence as they experienced it.

[54] Trials are conducted in black and white. Far from believing that B.B.’s VIS contradicted the evidence he gave at trial, I find that the VIS has been B.B.’s opportunity to tell his story in colour. He used the VIS to soften the frame of the trial’s rigid canvas and described in detail the experiences he lived through at the hands of his father.

Conclusion

[55] The fresh evidence does not meet the well-established criteria for admission.

[56] J.B.’s application to reopen the trial is dismissed and the conviction stands.

Justice A. Casullo

Released: September 18, 2024

[1] B.B. was born T.B., a female. B.B. transitioned to a male in 2014.