



WARNING

The President of the panel hearing this appeal directs that
    the following should be attached to the file:

An order restricting publication in this proceeding under ss.
    486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4       (1)
Subject to
    subsection (2), the presiding judge or justice may make an order directing that
    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)       any of the following offences;

(i)   an offence under section 151, 152, 153, 153.1, 155, 159,
    160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

(b)       two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect
    of the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, make the order.

(3)
In proceedings in respect
    of an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6       (1)
Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. P.G., 2012
    ONCA 859

DATE: 20121206

DOCKET: C54084

Sharpe, Lang and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.G.

Applicant/Appellant

Catriona Verner and Victor Giourgas, for the appellant

John Pearson, for the respondent

Heard: November 13, 2012

On appeal from the conviction entered on February 2, 2011
    by Justice J.C. Corkery of the Superior Court of Justice, sitting with a jury.

Sharpe J.A.:

[1]

The appellant was convicted of sexual assault and invitation to sexual
    touching following a trial before a Superior Court judge sitting with a jury.
    He was sentenced to 42 months imprisonment. He appeals the convictions.

[2]

The complainant was the appellants biological daughter, three years old
    at the time of the alleged offences and age 11 at the time of trial. The
    Crowns case rested entirely on the complainants unsworn, out-of-court
    statements made to her foster parents and to the police when she was four years
    old. At the time of trial, the complainant had no recollection of the alleged
    abuse or of having complained about it.

[3]

The central issue on this appeal is the admissibility of the
    out-of-court statements.

Facts

[4]

The facts may be stated briefly. The complainant and her brother lived
    with their parents until they were placed in foster care in March or April of
    2003, when the complainant was four and her brother was eight. On September 17,
    2003, several months after she had been placed in foster care, the complainant
    made allegations of sexual abuse to her foster parents, RP and LP.

[5]

RP noted that the complainant was masturbating under her clothes. He
    asked her why she was doing this and she told him it reminded her of her daddy
    who had spanked her puddie  her word for vagina  and it felt good. She
    reported that her father would take down his pants and bang bang banged his
    penis and then pee on her. She stated that it was not toilet pee, that it stunk
    and that she rubbed the pee on her face and her mother told her she looked
    pretty. She said her daddy told her it was a secret. She refused RPs request
    that she repeat the statement to a police officer because daddy will go to
    jail.

[6]

Despite being advised by social workers not to encourage the complainant
    to speak about her allegations, RP had a second conversation with the
    complainant. She reported in response to leading questions that her father had
    touched her privates with his penis, that he had penetrated her from the front
    when she sat on his lap facing away from him, that there had been bleeding, and
    that she experienced pain all the way down her leg. She also told RP that the
    appellant had toilet peed on her while she was taking a bath.

[7]

LP took notes of her conversation with the complainant later that
    evening when the complainant reported, inter alia, that she had played a game
    with her father during which he peed all over her and her mummy said it was
    pretty.

[8]

A week later RP and LP took the complainant to the police where she made
    a videotaped statement. She told the police that the appellant had pulled his
    pants down in her room, that she saw his privates, and that he had touched his
    privates. She further stated that he peed at her and, when asked if it was
    normal pee, she said yes. When asked how often this happened she initially
    estimated five times but then stated 50 times. She also alleged acts of oral
    sexual contact.

[9]

When asked if she understood what it means to tell the truth, she was
    unable to give a coherent answer. She also stated that she was five years old
    (she was actually four years old) and that she was in grade five.

[10]

After
    leaving the police station, the complainant made further allegations to RP and
    LP involving sexually inappropriate behaviour on the part of her mother, sexual
    abuse of her brother, and inappropriate photographs of her taken by her parents.
    She returned to the police the next day to repeat these allegations.

Procedural history

[11]

This
    case has a long and complicated history. The appellant was originally charged
    in September 2003 and convicted after his first trial in July 2006. In January
    2009, this court allowed the appellants appeal from conviction and ordered a
    new trial on the ground that
an expert, called by the Crown to offer the opinion that the
    complainant had suffered sexual assault, was allowed to give testimony that
    indicated to the jury his views of the veracity of the complaint
:
R.
    v. P.G.
, 2009 ONCA 32, 242 C.C.C. (3d) 558.

[12]

The
    second trial commenced in March 2010 when pre-trial motions began. The Crown
    sought a ruling pursuant to
R. v. Khan
, [1990] 2 S.C.R. 531 to admit
    the complainants out-of-court statements on the ground that she would be too
    traumatized to testify. However, the expert evidence in support of the application
    was dated and no longer reflected the situation of the complainant who, by then,
    had no recollection of the alleged abuse. The Crown abandoned that ground for
    admission and sought to have the statements admitted on the ground that the
    complainant had no recollection of the incidents of alleged abuse. The trial
    judge dismissed the Crowns application for an adjournment to call further
    evidence in support of that application, dismissed the Crowns motion to amend
    its notice to advance the new ground and admonished the Crown for inadequate
    preparation. Then, after formally dismissing the Crowns
Khan
application,
    the trial judge permitted the Crown to renew the
Khan
application on
    the basis of the complainants evidence that she had no recollection.

[13]

The
    trial commenced in July 2010 and the complainant testified that she had no
    memory of making the allegations and no memory of being abused by her father.
    As the basis of the
Khan
application had shifted, defence counsel
    sought an adjournment to consult with an expert to respond. A day later,
    defence counsel indicated that the expert he intended to call was not available
    in the immediate future. At that point, the trial judge declared a mistrial.

[14]

The
    matter resumed in December 2010 when pre-trial motions were argued. The
    appellants s. 11(b) application was dismissed, the jury was empanelled and the
    trial itself resumed in January 2011.

[15]

The
    complainant testified and was cross-examined on a
voir dire
but she
    did not testify before the jury. On the
voir dire
, the complainant
    testified that she had no recollection of the alleged abuse or of having made
    any complaints about the alleged abuse. Her memory was not improved by watching
    the videos of her statements to the police.

[16]

The
    appellant testified and denied the allegations. His evidence was supported by
    that of the complainants mother and brother who contradicted significant
    aspects of the complainants out-of-court statements.

The trial judges
Khan
ruling

[17]

The
    trial judge admitted the complainants out-of-court statements during the trial
    and indicated that he would give his reasons later. Those reasons were
    delivered after the jury had found the appellant guilty. He ruled that as the
    complainant could not recall the alleged abuse, the necessity requirement was
    satisfied. The trial judge also ruled that the complainants out-of-court
    statements were sufficiently reliable to warrant admission.

[18]

No
    issue is taken with the ruling as to necessity.

[19]

The
    trial judge found, on a balance of probabilities, that he was satisfied that
    the statements were reliable. He indicated: [t]he statements were provided
    relatively close in time to the events described. He found that although there
    was no exact record of the complainants statements to the foster parents , he
    was satisfied that their records and recollection were sufficiently accurate
    to meet the requirement of threshold reliability. He  recognized that some of
    the questions put to the complainant were leading but found given the nature
    of [the complainants] answers, the wording that she used and the nature of
    what she was discussing that the recollection of [RP and LP] substantially
    reflect what [the complainant] said and that what she said was reliable.

[20]

The
    trial judge noted that the statements were spontaneous and they disclosed
    matters one would not expect a young child to know of. He found that in her
    video statement she presented as a spontaneous, bright and candid child and
    that she was articulate for her age and revealed no deliberate hesitation that
    would suggest her answers were unreliable.

[21]

The
    trial judge observed that she was unable to understand the officers
    distinction between what the [sic] true and what is a lie, given her age this
    is not surprising. He added: [t]he nature of the acts she described are in
    and of themselves, sufficient to make her statements reliable.

[22]

The
    trial judge rejected the defence request that the complainant be made available
    for cross-examination before the jury as the complainants evidence was
    restricted to her out-of-court statements.

Issues

[23]

The
    appellant raises several grounds of appeal:

1.

Did the trial judge err by not finding that issue estoppel precluded the
    Crown from renewing the
Khan
application?

2.

Did the trial judge err by dismissing the appellants s. 11(b)
    application?

3.

Did the trial judge err by ruling that the complainants out-of-court
    statements satisfied the reliability component of the
Khan
test?

4.

Did the trial judge err by refusing the appellants request that the
    complainant be made available for cross-examination?

5.

Did the trial judge err by dismissing the appellants motion to
    introduce the complainants brothers prior consistent statement to rebut an
    allegation of recent fabrication?

Analysis

[24]

The
    central issues before us relate to the admission of the complainants
    out-of-court statements and the related ground of the dismissal of the
    appellants request that the complainant be made available for cross-examination
    before the jury. As I view those grounds of appeal to be dispositive, it will
    not be necessary for me to consider the remaining grounds of appeal.

[25]

Hearsay
    evidence is presumptively inadmissible but may be admitted if it falls within
    one of the recognized hearsay exceptions or under the principled approach if
    the requirements of necessity and reliability are met:
R. v. Khelawon
2006 SCC
    57, [2006] 2 S.C.R. 787.

[26]

The
    appellant concedes that as the complainant had no recollection of the events
    giving rise to the allegations against him, the necessity element was
    satisfied. The issue for us to decide is whether the trial judge erred in
    ruling that the element of reliability was also satisfied.

[27]

The
    principled approach to hearsay evidence focuses on whether there is some fact
    or circumstance that compensates for, or stands in the stead of the
    safeguards of reliability that exist when a witness gives first-hand evidence
    in the court room, namely, that the witness: (1) testifies under oath; (2) is
    present before the trier of fact to facilitate assessment of credibility; and
    (3) is subject to being tested by cross-examination: see
R. v. B.(K.G.),
[1993] 1 S.C.R. 740, at p. 787ff.

[28]

In
Khelawon
, at paras. 62-63, the Supreme Court of Canada pointed to two ways
    the reliability requirement can be satisfied. The first is by showing that
    there is no real concern about whether the statement is true or not because of
    the circumstances in which it came about. Second, it can be satisfied by
    showing that although the statement is in the form of hearsay, its truth and
    accuracy can nonetheless be sufficiently tested.

[29]

In
    my view, the trial judge failed to pay sufficient attention to the fact that
    these statements did not benefit from any of the hallmarks of reliability that
    have been identified in the case law as important to compensate for the absence
    of or stand in the stead of the oath, the presence of the witness before the
    trier of fact and the availability of cross-examination.

[30]

First,
    none of the statements were made under oath and the complainant could not
    provide the police with a coherent explanation to demonstrate that she
    understood the difference between telling the truth and telling a lie. Although
    the trial judge found that the complainant did not appear to understand the
    difference between telling the truth and telling a lie, he gave that no weight
    in his reliability assessment. Moreover, he failed to deal with obvious
    misstatements she made as to her age and school grade or her confusion as to
    the number of times her father had peed on her. The trial judge found that
    reliability could be attributed to the fact that a young child would not have
    knowledge of the sexual acts described, yet he failed to deal with RPs
    evidence that he thought that she might have acquired that knowledge by watching
    pornography.

[31]

A
    related point arises from the trial judges finding that [t]he statements were
    provided relatively close in time to the events described and the use of that
    finding as an indicia of reliability. This reasoning reveals both a misapprehension
    of the evidence and a misreading of the leading case of
Khan
. It is
    clear from the record that the statements were not provided until at least
    several months after the events described. This stands in stark contrast to the
    situation in
Khan
where the infant complainant reported an act of
    sexual abuse within minutes of its occurrence. The delay in disclosure here was
    a factor that detracted from its reliability yet the trial judge treated the
    timing as a factor favouring reliability.

[32]

Second,
    the complainants statements to RP and LP were not recorded and the jury had
    only their recollection of what the complainant said to them. The statements to
    the police were recorded but they varied considerably from the statements made
    to RP and LP. Moreover, to the extent that the reliability assessment had to be
    made on the basis of the recollections of RP and LP, there were features of
    those statements that give rise to serious concerns as to reliability. The
    trial judge failed to advert to or explain those features. In particular, the
    suggestion that the complainants mother said she looked pretty with her
    fathers semen smeared on her face is highly implausible as was the suggestion
    that the appellant penetrated her from the front while she was on his lap, an
    allegation the trial judge expressly rejected in his reasons for sentence.
    Likewise, the trial judge failed to provide an adequate reason to alleviate the
    concern that significant aspects of the initial disclosure to RP were given in
    response to leading questions.

[33]

Third,
    the appellant had no opportunity to cross-examine the complainant on her
    statements even though this could easily have been dealt with by acceding to
    the defence request that the complainant be made available for
    cross-examination. Cross-examination of the declarant is an important safeguard
    that will often render hearsay evidence sufficiently reliable to warrant
    admission:
R. v. U.(F.J.)
,
[1995] 3 S.C.R. 764
,
at para. 32;
R.
    v. B.(K.G.),
at p. 794.

[34]

Clearly,
    in cases involving sexual offences against young children, cross-examination
    will often not be possible or appropriate. For example, had the necessity
    element rested on the fact that the complainant would be traumatized by
    testifying before the jury, cross-examination would be out of the question.
    However, here the complainant had testified without incident or protest before
    the mistrial and again on the
voir dire
when the trial resumed. In
    these circumstances, the trial judge should not have admitted the out-of-court
    statements unless the appellant had the opportunity to cross-examine her.

[35]

In
    my opinion, admitting the out-of-court statements without affording the
    appellant the opportunity to cross-examine the complainant before the jury
    produced an unfair trial. The jury was left with an incomplete and potentially
    misleading picture. The jury did not know that the complainant had no present
    recollection of the alleged abuse or of having complained of such abuse. Even
    if the complainants hearsay statements were otherwise admissible, fairness
    required that the appellant have the opportunity to point out to the jury that
    the complainant claimed to have no present recollection of her allegations of
    abuse and, if he chose to do so, to explore the reason or explanation for her
    lack of memory.

[36]

I
    conclude that the trial judge erred by admitting the complainants out-of-court
    statements into evidence.

Disposition

[37]

In
    my view, the trial judges error in ruling that the complainants out-of-court
    statements were sufficiently reliable to warrant admission is fatal to the
    convictions. I would allow the appeal and set aside the convictions.

[38]

The
    appellant has now been before the courts for almost ten years on these charges.
    He has faced two trials and he has succeeded twice on appeal. His s. 11(b)
    application was dismissed by the trial judge but at that point, two years ago,
    the case had reached the outer limit of the recognized guidelines.  He has by
    now served a substantial portion of his sentence. Given my
    ruling as to the admissibility of the complainants out-of-court statements,
    prosecuting a third trial would be problematic. In my view, in these
    circumstances, it is in the interests of justice to enter a stay of
    proceedings.

Robert J. Sharpe J.A.

I agree Susan E. Lang
    J.A.

I agree M.H. Tulloch J.A.

Released: December 6, 2012


