



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    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in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. R.H., 2013
    ONCA 126

DATE: 20130301

DOCKET: C54582

Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.H.

Appellant

David E. Harris, for the appellant

Elise S. Nakelsky, for the respondent

Heard: February 19, 2013

On appeal from the convictions entered on September 13,
    2011 by Justice Paul J. S. Kowalyshyn of the Ontario
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals from his conviction for sexual interference. The
    assault allegation depended upon the evidence of the young victim, who
    testified to a brief touching by the appellant, her uncle. The appellant
    testified, and denied the allegation. The grounds of appeal arise out of what
    Crown counsel on appeal properly concedes was improper cross-examination by the
    trial Crown, not Ms. Nakelsky. Following the hearing of the appeal, the court
    indicated that the appeal was allowed and an acquittal entered, with reasons to
    follow. These are those reasons.

[2]

The improper cross-examination and the re-examination that followed it were
    as follows:

Q. So Mr., Mr. [H.], Im going to suggest that, that you really
    have no explanation at all about where this allegation would come from?

A. No.

Q. Okay. Certainly from what your evidence is, its not like
    shes confusing some innocent encounter that you had with her.

A. No.

Q. Doesnt match up with anything that you can even recall
    remotely that would  that she might have crossed her wires on.

A. No.

Q. Okay. And I take it from your answers earlier that you, you
    felt quite close with [J.]

A. Very.

Q. Okay. And youve never had experience with her making up
    lies about people before.

A. I do not know [J.] to be a liar.

Q. Im going to suggest Mr. [H.] that, you know, youve
    said you dont know her to be a liar, its not even remotely consistent with
    something, some innocent contact that youve had with her, that the only
    explanation really is that what [J.] was describing is something that happened.

A. Please reword the question, I didnt get that.

Q. Im suggesting to you that [J.]s not lying and its not
     she hasnt crossed her wires on some innocent contact that you had with her
    because youve said its not remotely like anything youve  contact youve had
    with her. That the only explanation is that what shes described is true.

A. I do not know.

[Crown Counsel]: I dont have any other questions, Your Honour.

THE COURT: Any...

[Defence Counsel]: I just have one question in re-examination.

RE-EXAMINATION BY [DEFENCE COUNSEL]:

Q. My friend asked you  the last question he asked you,
    which was almost a three-part question, but as I understand it he was asking
    you whether or not what [J.]  he, he said, what [J.] had told the police must
    be true, regarding your conduct. Did you understand that to be his question?

A. I understood that to be his question.

Q. Okay. And whats your answer?

A. No.

Q. Thank you. [Emphasis Added]

[3]

The cross-examination violated the well-known principle stated in cases
    going back to
R. v. Markadonis
, [1935] S.C.R. 657, that it is improper
    to ask an accused for his opinion of the veracity of another witness. The
    question is unfair and where, as here, that witness is the person making the
    central allegation against the accused, the question undermines the presumption
    of innocence. As the authors of
McWilliams Canadian Criminal Evidence
note at 27-23, the question also forces the accused to advocate the case when
    his role is to testify as a witness: see Mr. Justice S. Casey Hill, David M.
    Tanovich and Louis P. Strezos, eds.,
McWilliams Canadian Criminal Evidence
,
    loose-leaf, 4th ed. (Aurora, ON: Canada Law Book, 2009).

[4]

In some cases it may be possible to say, as did this court in
R. v.
    Daly
(1992), 57 O.A.C. 70, that no substantial wrong was occasioned
    because the question does no more than point out the obvious; the stories of
    the accused and the complainant are diametrically opposed. In other cases, and
    in our view this is one of them, the trier of fact may use the accuseds
    inability to account for the complainants story to weigh against the
    credibility of the accused. The appellant in this case could not be called upon
    to give his opinion of whether the complainant was lying. It is not surprising
    that his answer to the confusing and improper question was equivocal.

[5]

Regrettably, the trial judge, in reasons that are otherwise a careful
    and thorough review of the evidence and the applicable legal principles, used
    the appellants response to the improper question to find against him. The
    trial judge said the following in his reasons:

Now this of course does not end the matter. Notwithstanding
    that there is no onus on the accused to do anything in the case, the court did
    have the benefit of hearing directly from Mr. [H.] For all but the very end of
    his evidence, Mr. [H.] was very clear and concise. He unequivocally and
    categorically denied all of the allegations against him. He specifically denied
    that he sexually assaulted his niece in any way, that he pulled her pants down
    at any time, that he exposed his penis to her, that he rubbed his penis against
    her vagina, that he did anything to [J.] that could be misinterpreted as being
    sexual in any way. He also readily acknowledged that there were times that he
    would have been alone with [J.], but was steadfast in denying that anything
    inappropriate let alone anything sexually inappropriate had happened between
    them. In cross-examination, Mr. [H.] spoke of what had previously been a very
    positive relationship with his niece. He indicated that [J.] was never fearful
    of him.
He had no explanation for [J.]'s story and even went so far as to
    say that he didn't know [J.] to be a liar. Had this been the conclusion of Mr.
    [H.]s evidence, then arguably the court would have been left with a reasonable
    doubt
based on the
dicta
in the Supreme Court of Canada decision
R.
    v. W.D.
However, it was not. The Crown concluded its cross-examination of
    Mr. [H.] with a somewhat convoluted question in which, in which Mr. [H.] was
    asked that if [J.] wasnt lying and if there wasnt some innocent contact
    between them which had been misinterpreted, then [J.] must have been describing
    something that actually happened between her and Mr. [H.] Mr. [H.] quite fairly
    asked that the question be reworded because he didn't understand it. The
    exchange between him and [Crown counsel] at page 62 of the transcript from July
    25 reads as follows: [Transcript Omitted]

Mr. [H.]'s response of "I do not know" to the
    reworded question caused me considerable and immediate concern the moment it
    was uttered. I also noted the manner in which it was stated. Mr. [H.], for the
    first time during his evidence, presented as being unsure of the answer to give
    as if he knew that if he answered "yes" then he would certainly be
    inculpating himself. I also note that before Mr. [H.] gave that answer that he
    paused momentarily, which was somewhat different from his other responses to
    other questions.

Now it is clear that there can be no doubt that at the time
    that Mr. [H.] was asked the reworded question by [Crown counsel] that he
    understood it. Mr. [H.] confirmed as much in his response to a question asked
    by his lawyer, [defence counsel], in reply. On page 63, this is the question by
    [defence counsel] and the answer by Mr. [H.]:
[Transcript Omitted]

I am mindful that Mr. [H.] went on to add that what [J.] had
    told the police was not true. [Defence counsel] asked him, "Okay. And
    what's your answer?" Mr. [H.] replied, "No". This was an
    entirely different answer than Mr. [H.] had given just seconds before.
In
    my view, and notwithstanding the response given my  by Mr. [H.] to [defence
    counsels] question in reply, that horse was already out of the barn.
If Mr.
    [H.] had not done the act complained of, then there could only be one answer to
    the question posed by [Crown counsel], a question which Mr. [H.] confirmed he
    understood. That answer is, and should have been, an, an emphatic
    "no". Instead, Mr. [H.] paused and answered that he didn't know. Well,
    certainly only Mr. [H.] could know the answer to this question.
Accordingly,
    whatever doubt existed up until that point in the evidence was erased by Mr. [H.]'s
    answer to that question posed by [Crown counsel] and as a result, the court is
    left with no reasonable doubt
and accordingly a conviction will register
    in relation to the count of sexual assault contrary to section 271. The other
    charge will be stayed. [Emphasis added].

[6]

In her very helpful submissions, Ms. Nakelsky submits that the trial
    judge did not err in his use of the appellants evidence. She points out that
    during argument the trial judge showed that he was aware that there was no
    burden on the accused person to explain why this set of circumstances may have
    happened or why this witness may be lying. It is undoubtedly true that the
    trial judge was aware of this principle. Unfortunately, when he came to explain
    his reasons for disbelieving the appellant, it appears that the trial judge
    used as the decisive factor that the appellant was unable to explain why the
    complainant was lying.

[7]

Ordinarily, the appropriate remedy would be to allow the appeal and
    order a new trial. However, in this case, a fair reading of the trial judges
    reasons is that he would have had a reasonable doubt, but for the appellants
    response to Crown counsels improper question. In particular, we note his
    statement at the very end of his reasons that whatever doubt existed up until
    that point in the evidence was erased by Mr. [H.]s answer to that question
    posed by [Crown counsel] and as a result, the court is left with no reasonable
    doubt.

[8]

Accordingly, as we indicated at the conclusion of argument, the appeal
    is allowed, the conviction set aside and an acquittal entered on the charge of
    sexual interference. The stay of proceedings on the charge of sexual assault is
    lifted, and an acquittal entered on that charge as well.

M. Rosenberg J.A.

J.C. MacPherson J.A.

H.S. LaForme J.A.


