



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    that could identify the complainant or a witness shall not be published in any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. J.S., 2014 ONCA 541

DATE: 20140710

DOCKET: C55226

Rosenberg, MacPherson and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.S.

Appellant

Mark Halfyard, for the appellant

Gillian Roberts, for the respondent

Heard: May 27, 2014

On appeal from the conviction entered on October 31, 2011
    and the sentence imposed on February 23, 2012 by Justice Healey of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction by Healey J. for various sexual
    offences. The complainant, the appellants stepdaughter, was approximately six
    years of age at the time of the offences and was eight years of age at the
    trial. The appellant and the complainants mother A.C. each had two children at
    the time they became involved in a relationship. The appellant has two
    children, the oldest D.S. being approximately 8 years of age at the time of the
    offences. These two children ordinarily lived with their mother but would visit
    the appellant and A.C. every two weeks. The disclosure leading to the charges
    began when the complainant told others that her stepbrother D.S. was sexually
    assaulting her. The complainant then gave a number of statements, implicating
    the appellant, that were the focus of the prosecution and form the main basis
    for the appeal.

[2]

The appellants main submission was that the trial judge erred in
    admitting the statements when, at trial, the complainant refused to testify
    about any acts by the appellant. While the trial judge admitted four statements,
    the core of the prosecution case was in a videotaped statement that the
    complainant gave to the police on May 20, 2009 and the complainants testimony
    at the preliminary inquiry in which she adopted that statement, which was
    admitted under s. 715.1 of the
Criminal Code
. The complainant was
    cross-examined at the preliminary inquiry. The trial judge also admitted a
    statement made by the complainant the day before the preliminary inquiry to the
    investigating officer. While the officer was concerned that the complainant
    would retract her complaints, as she had on an earlier day, the complainant
    ended up confirming much of the May 20 statement. The officer did not audio or
    video tape that statement and the substance of the statement was as later
    recorded by the officer in her notes. In her reasons, the trial judge dealt
    with the issues again raised before this court.

[3]

We are satisfied that the trial judge properly applied the law as laid
    down, in particular in
R. v. Hawkins,
[1996] 3 S.C.R. 1043 and
R.
    v. Khelawon
, [2006] 2 S.C.R. 787. The most compelling feature in this case
    was that the complainant testified at the preliminary inquiry and that her
    testimony was properly admitted by the trial judge in accordance with
Hawkins
.
    The videotaped statement of May 20 became part of the complainants testimony
    at the preliminary inquiry and was properly admitted.

[4]

We also see no error in the trial judges decision to admit the
    statement made to the police officer. The police officer explained why she did
    not audio or video tape the statement. The trial judge unequivocally accepted
    the officers explanation and her notes of the conversation. The officers
    evidence explained the failure to tape record the statement and provided a
    reliable version of the statement. Moreover, it was important that the
    statement be admitted to properly understand the basis for the testimony at the
    preliminary inquiry.

[5]

The appellant submits that the trial judge erred in relying upon a
    portion of the complainants statement as corroborative of the reliability of
    the statement. The portion referred to is where the complainant described, in
    her own words, ejaculation by the appellant. The appellant concedes that this
    statement shows that the complainant was subjected to a sexual attack. He
    argues, however, that this part of the statement did not confirm the
    reliability of the statement to the extent that it identified the appellant.
    The appellant submits that it was possible that the alleged assault by the eight-year
    old step-brother could have been the source of this information. This is a
    highly unlikely proposition. But, in any event, as we have said, the
    admissibility of this statement turned on the preliminary inquiry transcript
    and there was therefore no need for other corroborative evidence to render the
    statement admissible.

[6]

The appellant submits that the trial judge failed to adequately consider
    that because the complainant essentially refused to testify at the trial,
    defence counsel was unable to cross-examine the complainant in accordance with
    an earlier ruling permitting cross-examination related to the alleged sexual
    assault by the complainants 8 year old step-brother. The theory of the defence
    was that the step-brother and not the appellant had sexually assaulted the
    complainant.  The appellant did not attempt to cross-examine the complainant on
    this issue at the preliminary inquiry and did not lead other evidence at trial from
    the complainants mother and grandmother that could have supported this theory.
    The appellant submits that the trial judge should have exercised her discretion
    to exclude the hearsay evidence on the basis that the prejudicial effect
    outweighed the probative value.

[7]

The leading Canadian case on the evidentiary status of evidence from an
    unresponsive witness is
R. v. Hart
(1999), 135 C.C.C. (3d) 377 (N.S.
    C.A.), which has been applied by this court in
R. v. Cameron
(2006),
    208 C.C.C. (3d) 481 (Ont. C.A.) and
R. v. Duong,
2007 ONCA 68. In
R.
    v. Hart
, Cromwell J.A. identified several factors for the trial judge to
    take into account:

(1)     the reason for the unresponsiveness;

(2)     the impact of the unresponsiveness; and

(3)     the possibilities of ameliorative action.

[8]

Those factors do not favour excluding the hearsay statements. The trial
    judge identified the reason for the complainants lack of response. The
    proceedings had lasted several years and the evidence shows that the
    complainant had been influenced by several people, especially her mother who
    was anxious to again live with the appellant. Her decision to no longer
    actively participate was a function of the proceedings. The impact of the
    unresponsiveness was limited. The complainant testified at the preliminary
    inquiry that she was sexually assaulted by the appellant and her step-brother. The
    nature of the assaults, as described by the complainant, were described in
    different ways. Finally, there were actions that could have been taken. Most
    importantly, the appellant could have led evidence from the mother and
    grandmother in an attempt to show that the step-brother had improper access to
    the complainant. That evidence was never led, even though the mother testified
    at the trial for the defence in respect of other matters. There is no basis for
    setting aside the convictions on this basis.

[9]

The appellant submits that the trial judge erred in relying upon
    Detective Lamannas opinion about the complainants demeanour. Much of the
    objected to evidence was properly admitted to explain the complainants
    demeanour to assist in understanding the reliability of the complainants
    evidence. We have not been persuaded that the trial judge gave improper weight
    to this evidence or in any way delegated her decision about reliability to the
    Detective.

[10]

The
    appellant submits that the trial judge erred in discounting the similarities
    between the allegations respecting the step-brother and the allegations made
    against the appellant. There is no merit to this submission. The trial judge
    was aware of the allegations and she gave complete reasons for explaining why
    she accepted the evidence that identified the appellant as the perpetrator.

[11]

Finally,
    the appellant submits that the trial judge implicitly reversed the burden of
    proof by the way that she dealt with the appellants opportunity to commit the
    offences. The reasons do not support this submission. In her review of the
    evidence, the trial judge pointed out that the evidence from the complainants
    mother did not show that the appellant did not have an opportunity to commit
    the offence. This was an entirely fair summary of the evidence and did not
    reverse the burden of proof.

[12]

Accordingly,
    the appeal is dismissed.

M. Rosenberg J.A.

J.C. MacPherson J.A.

P. Lauwers J.A.


