



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.




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    that could identify the complainant or a witness shall not be published in any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.M.C, 2016 ONCA 829

DATE: 20161107

DOCKET: C60705 & C60581

Laskin, Sharpe and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.M.C.

Appellant

Phillip Millar, for the appellant

Rochelle Direnfeld, for the respondent

Heard: October 26, 2016

On appeal from the conviction entered on January 9, 2015
    and the sentence imposed on May 15, 2015 by Justice John A. Desotti of the Superior
    Court of Justice, sitting without a jury, with reasons reported at 2015 ONSC 63

By the Court:

[1]

The appellant appeals his convictions on 26 counts of sexual assault and
    sexual touching committed when he was an adult with respect to his stepdaughter,
    and on 26 counts of indecent assault and gross indecency committed when he was
    a young offender with respect to three young females. All allegations were
    historic. The adult offences were allegedly committed when the appellant was 41
    to 48 years old and his stepdaughters, K.T. and J.T., were between 5 and 11
    years old. For all but two of the alleged young offender offences, the Crown
    could not prove that the appellant was older than 13 at the time of the alleged
    offences. The complainants L.C., P.B. and K.A. were between 5 and 9 years
    old. Two of the alleged young offender offences were proven by the Crown to
    have occurred after the appellants fourteenth birthday, when the complainant
    K.A. was nine or ten years old.

[2]

The respondent Crown concedes that 24 of the 26 young offender convictions
    must be set aside, as the allegations in those counts concerned events that could
    not be proven to have occurred after the appellants 14th birthday. Contrary to
    the notice the Crown filed, pursuant to the
Youth Criminal Justice Act,
S.C. 2002, c. 1

(the 
YCJA
)
the Crown could not seek an adult
    sentence for those counts. As a consequence, the appellants election of a trial
    before the Superior Court was invalid, as the court had no jurisdiction to try
    him on those counts.

[3]

The appellant raises three principal grounds of appeal relating to the
    remaining counts.

[4]

First, the appellant submits that the trial judge erred by conducting
    the trials on the adult and the young offender indictments simultaneously and,
    in effect, as a single trial.

[5]

Second, the appellant submits that the trial judge erred in admitting
    evidence of the young offender counts as similar fact evidence on the adult
    counts, and evidence of the adult counts as similar fact evidence on the young
    offender counts.

[6]

Third, the appellant submits that the trial judge erred in admitting as
    similar fact evidence a videotaped statement of the appellants natural
    daughter S.C., alleging more historic acts of sexual impropriety.

[7]

We agree with these three submissions and conclude that this appeal must
    succeed in that new trials should be ordered.

Facts

[8]

The essential facts may be briefly stated.

[9]

The appellant and his ex-wife were married in the Yukon and each had
    children from previous marriages. They moved to Ontario in 2000 with the
    appellants ex-wifes children, and separated in 2005. In 2012, the appellants
    step-daughter K.T., then in grade 12, made allegations that the appellant had
    sexually assaulted her when she was aged 5 to 11. The appellants younger
    sister, J.T., eventually made similar allegations. Twenty-eight charges were
    laid, 26 counts pertaining to K.T., and two counts pertaining to J.T.

[10]

When news of these charges was published in the media, three women came
    forward to allege that the appellant had sexually abused them some 30 years
    earlier. At trial it was established that these allegations concerned the
    period when the appellant was between the age of 12 and 15, and the
    complainants were aged between 5 and 11 years old.

[11]

As we will explain when discussing the similar fact evidence ground of
    appeal, there were similarities in the allegations made by the various
    complainants. All testified that the appellant had touched them inappropriately
    or that he had them touch him inappropriately.

Analysis

(1)

Trial together of adult and young offender indictments.

[12]

The appellant had asked for and expected two separate trials be held,
    with separate triers of fact on the two indictments. Counsel for the appellant
    agreed to run one trial after the other, but not to a single trial on both
    indictments. In a chambers discussion conducted on the first day of the
    scheduled trial, the trial judge indicated that both the adult and the young
    offender trials would run concurrently in front of him. There were two separate
    indictments, two arraignments, and the record for the two sets of counts was
    kept separate by the court reporters, but the trials proceeded together in all
    other respects. The trial judge rendered a single judgment, convicting the
    appellant on all but two counts. The trial judge noted in his reasons for the
    similar fact ruling that there was no severance application made by the
    appellant. However, this is explained by the fact that the proceedings were
    scheduled to be tried separately, and thus no severance application was
    required.

[13]

In our view, the trial judge erred in law by conducting what in
    substance amounted to a single trial of the adult and young offender
    indictments.

[14]

In
R. v. S.J.L.
, 2009 SCC 14, [2009] 1 S.C.R. 426, the Supreme
    Court of Canada held that the
YCJA
does not permit the joint trial of
    a young person and an adult. In our view, the principle upon which
S.J.L.
rests precludes the joint trial of a young offender indictment and an adult
    indictment involving the same accused.

[15]

Writing for the majority in
S.J.L.
, Deschamps J. held, at para.
    72, that it can be stated definitively that [t]he youth justice system is
    separate from the adult system, with separate courts, judges and rules (
L. Tustin and R. E. Lutes
, A Guide to
    the Youth Criminal Justice Act
(2005), at p. 29). She added, at para. 74,
    that Parliament intended to establish a youth criminal justice system that is
    hermetic, and completely separate from the system for adults, and thus to make
    it impossible to hold joint trials of adults and young persons. The rationale
    for this separation was explained, at para. 75:

[T]he effect of the objectives of the [
YCJA
]
    is that the judge is asked to favour rehabilitation, reintegration and the
    principle of a fair and proportionate accountability that is consistent with
    the young persons reduced level of maturity. As for the adult criminal justice
    system, it places greater emphasis on punishment.
There is no doubt that
    how the judge conducts the trial will reflect these different objectives. It
    would be much more difficult to maintain an approach favourable to a young
    person if he or she were being tried together with an adult, and the
    presumption of diminished moral blameworthiness to which the young person is
    entitled could be undermined as a result.
[Emphasis added.]

[16]

While those statements were made in the context of a case involving the joint
    trial of distinct adult offenders and young offenders, in our view, they apply
    with equal force to a joint trial of one individual on adult and young offender
    indictments. Indeed, it seems to us that it would be even more difficult for a
    trial judge to maintain the favourable approach and presumption of diminished
    moral blameworthiness towards an accused as mandated by the
YCJA
if
    the accused were being simultaneously tried for adult offences. Although the
    appellant was an adult when the young offender charges were tried, he was
    entitled to be tried and judged on the legal standard that applied to him at
    the time he was alleged to have committed these offences.
S.J.L.
establishes that the maintenance of the
YCJA
standards requires
    separate and discrete consideration, hermetically isolated from the legal
    standards that apply to adults.

[17]

We do not accept the respondent Crowns submission that by maintaining
    two indictments and coopering together two separate transcripts of the
    proceedings, what occurred here did not amount to a single trial of the two
    sets of charges. In our view, these purely formal features of what occurred
    should not obscure the fact that, in substance, this amounted to one trial of
    the two sets of charges.

[18]

The respondent argues that if there was an error in conducting a single
    trial of the adult and young offender charges, the convictions on the two
    remaining
YCJA
convictions can be saved under the
Criminal Codes

proviso
, s. 686(1)(b)(iv). As
    we have concluded that the convictions on both the youth and adult indictments
    must also be set aside on other grounds, we find it unnecessary to consider this
    argument. Nor is it necessary to consider the appellants submission that the error
    infected the adult convictions.

(2)

Similar fact evidence

[19]

The appellant conceded that the evidence on both indictments was
    admissible across counts on each indictment, but argued that evidence on the
    young offender counts should not be admitted as similar fact evidence on the
    adult counts and vice versa. The trial judge rejected that argument, and ruled
    that the evidence on all counts was admissible with respect to all other
    counts.

[20]

In addition, the trial judge admitted as similar fact evidence the evidence
    of a complaint of sexual abuse made by the appellants daughter S.C.
    (considered below), and the evidence of K.F., a friend of the appellants
    step-daughters, whose allegations the trial judge ultimately rejected.

[21]

In his reasons for judgment, the trial judge explained his similar fact
    ruling. After reviewing the principles established by
R. v. Arp
, [1998]
    3 SCR 339 and
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, he ruled
    as follows:

[32]    The factors I consider significant arising from both
    indictments are as follows:

1.       All of the
    female complainants except S.C. (teenager) were very young female children.

2.       There was
    a close connection or relationship to the accused. The young girls were all
    neighbours, a cousin, daughter, or step-daughters. These female children were
    all well known to the accused and as such none of these allegations reflected a
    random encounter with a stranger or a chance encounter with a young female
    child.

3.       Excepting
    L.C., all of these female children were in the presence of the accused because he
    was in a position of trust. He was the father, stepfather, babysitter, or
    person in authority (supervising adult with respect to K.F.).

4.       Any of the
    alleged sexual contacts were said to have been occasioned in places where the
    accused frequented or was accustomed to, such as his home, cottage (camp), or
    the childs home. Moreover, these sexual encounters occurred in familiar
    surroundings such as the complainants bedroom, the complainants bathroom, the
    complainants living room, the accuseds living room couch, sauna, cottage
    bedroom (bunkbed), accuseds hot tub, accuseds basement and the accuseds
    front vestibule.

5.       The sexual
    contact did not include sexual intercourse but fondling and touching of the
    female childs genitals including the insertion of a finger into their vaginas
    (two complainants, the allegation of his daughter S.C., and the witness K.F.),
    licking of their vaginas (two complainants), and in one instance with the
    witness, K.F., the assertion that he touched her all over her body.

6.       In
    addition, the accused with four complainants had them perform oral sex and with
    the same four complainants had them masturbate him.

7.       Two
    complainants were asked to observe him ejaculate (sauna and bathroom).

8.       No
    complainants indicated that they had engaged in any kissing.

9.       Two
    complainants in the Youth indictments indicated that they were warned that he
    would tell our parents I was bad and with respect to another complainant
    dont tell or youll be in trouble.

10.     The three
    complainants in the Youth indictments were childhood friends and two were
    childhood neighbours, while S.C. was a distant stepsister to the two
    complainants K.T. and J.T., and K.F. was J.T.s best friend.

[33]    In our [sic] assessment, these similar circumstances,
    details of allegations, and distinctive features, coupled with a paucity of any
    negative factors (see
Handy
) was the rationale for our decision to
    allow the cross-over in the allegations in the Youth indictment to prove the
    allegations in the Adult indictment and vice-versa and to allow the allegations
    of S.C. and her sworn written and videotaped statements and the Crowns
KGB
application to reflect similar fact circumstances with respect to both the
    adult and youth offences.

[22]

The trial judge noted, at para. 30, that defence counsel had submitted
    that evidence should not be admitted across indictments given the passage of 30
    years between the allegations contained within the youth and adult charges and,
    more importantly, because the accused was a young person at the time of the
    alleged youth offences, an adult at the time of the adult offences. However, before
    listing the similarities we have set out above, the trial judge failed to offer
    any explanation as to why he was rejecting this defence submission, except for
    the following, at para. 31:

I acknowledge that in considering the factors as reflected in
    the
Handy
decision, proximity of time would not be present in the
    allegations in the Youth indictment and the time frame as alleged in the Adult
    indictment.  Nevertheless, there are significant other factors that are present
    and compelling to allow for such a cross-over of similar acts.

[23]

While we recognize that a trial judges ruling on similar fact evidence
    attracts considerable deference on appeal, it is our view that the trial judge
    erred by failing to come to grips with the significance of the considerable
    passage of time, and the difference in circumstances between the two sets of
    charges.

[24]

More than 30 years had elapsed from the time of the young offender
    allegations. At the time of those allegations, the appellant was a young boy.
    In the case of 24 of the 26 charges he was not proven to be 14, and thus the
    law precludes the Crown from having those charges treated as adult offences. At
    the time of the adult allegations, the appellant was a mature adult approaching
    50 years of age. In our respectful view, given the passage of time and the very
    significant difference in the age of the appellant, it was incumbent on the
    trial judge to offer a more cogent explanation for the admission of the similar
    fact evidence between the indictments in the circumstances of this case. We
    agree with the appellant that it would be dangerous to infer from the actions
    of the young boy the likelihood of guilt of a mature adult. Equally, we find it
    difficult to see what light the actions of a mature adult shed upon allegations
    made against that individual when he was a young boy.

[25]

There were certainly similarities between the alleged acts of adult and
    young offender sexual impropriety. However, those similarities were not so
    striking or apparent to overcome the obvious problems posed by the passage of
    time, and the difficulty of attributing significance to the acts of an young
    offender when considering the guilt of an adult and vice versa.

[26]

We conclude, accordingly, that the trial judge erred in his similar fact
    ruling. In his reasons for conviction on the adult counts, the trial judge
    explicitly referred to the similar fact evidence from the young offender counts
    as supporting the convictions. While he did not make a similar statement with
    reference to the youth convictions, it can be inferred from the significance he
    makes of the similar fact ruling in his reasons for judgment that the improper
    admission of the similar fact evidence had an impact on those counts as well. In
    our view, the error in admitting the similar fact evidence requires that all of
    the convictions must be set aside.

(3)

Admission of the appellants daughters video-taped statement as similar
    fact evidence.

[27]

The Crown called the appellants natural born daughter, S.C., as part of
    the similar fact application. S.C. was asked about allegations of sexual
    impropriety that she had made against the appellant in 1995. The appellant had
    been charged, but when S.C. recanted at the preliminary inquiry, those charges
    were stayed by the Crown. Prior to the trial of the present charges, S.C. was
    provided with the transcript of a statement she had made to the police in 1995.
    S.C. then testified that the allegations of sexual impropriety on the part of
    the appellant she had made in the 1995 statement were not true. The Crown
    cross-examined S.C. on her statement, but she remained firm in denying its truthfulness.
    During this cross-examination, S.C. testified that she had never seen the video
    of her statement, and that she would like to see it in order to better answer
    Crown counsels questions. S.C. resided in Yukon and she returned there at the
    conclusion of her evidence. Although the Crown had received a copy of the video
    statement prior to her departure, the videotape had not yet reached the
    location of the trial. Thus, S.C. was never given an opportunity to view it.
    Subsequently the Crown played the video for the Court, and the trial judge
    allowed the Crowns
KGB
application to admit the video statement as
    evidence. In his judgment, the trial judge made findings as to S.C.s demeanour
    in the video when accepting the truth of her 1995 allegations over her trial
    testimony.

[28]

In our view, the trial judge erred in permitting the Crown to introduce
    S.Cs video statement in the circumstances outlined. S.C. disputed the truth of
    the statements she made in the video, and she should not have been deprived of
    the opportunity to view the video before it was admitted into evidence. More
    importantly, it was unfair for the trial judge to admit the video into evidence
    when the appellant was deprived of the opportunity to cross-examine S.C. on its
    contents. The appellants cross-examination of S.C. based on the transcript
    alone was insufficient, as the appellant was thus unable to question S.C. on
    her demeanour in giving the statement. The Supreme Court of Canada has stressed
    the significance of the opportunity to cross-examine a witness fully on an
    out-of-court statement as a factor bearing on reliability when that
    out-of-court statement is proffered as evidence: see
R. v. Khelawon,
2006 SCC 57,

[2006] 2 S.C.R.
    787.

Disposition

[29]

In our view, the errors we have identified were significant and had the
    effect of depriving the appellant of a fair trial. Accordingly we allow the
    appeal, set aside the convictions, and direct a new trial.

[30]

We thank counsel for their assistance in this matter and, in particular,
    commend Ms. Direnfeld for her candour in bringing to the courts attention the
    problem with 24 of the 26 young offender counts.

Released: November 7, 2016

John Laskin J.A.

Robert J. Sharpe
    J.A.

Grant Huscroft J.A.


