



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    that could identify the complainant or a witness shall not be published in any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.




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.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.A., 2015 ONCA 754

DATE: 20151106

DOCKET: C56264

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.A.

Appellant

Jill D. Makepeace, for the appellant

Deborah Calderwood, for the respondent

Heard: September 15, 2015

On appeal from the conviction entered on May 25, 2012 by
    Justice Joseph A. De Filippis of the Ontario Court of Justice, with reasons
    reported at 2012 ONCJ 317, and from the dismissal of a motion for a mistrial
    dated August 8, 2012, with reasons reported at 2012 ONCJ 526.

Brown J.A.:

I.

OVERVIEW

[1]

The appellant, J.A., a young person, was convicted of sexual assault,
    sexual interference, invitation to sexual touching and indecent act (exposure)
    relating to R.G., another young person. He was acquitted of the same four charges
    relating to M.R., also a young person. The appellant appeals against his
    convictions.

[2]

The appellant raises two grounds of appeal:


(i)

The trial judge erred in dismissing the appellants motion for a
    mistrial brought after a finding of guilt, but before sentencing; and


(ii)

The trial judge failed to scrutinize meaningfully the evidence presented
    by the Crown in relation to R.G.s allegations and provided insufficient
    reasons for his assessments of the credibility of the witnesses.

[3]

At the hearing of the appeal, the appellant limited his submissions to the
    mistrial issue.


II.

FACTS

[4]

At trial, evidence was given about four incidents involving R.G. and the
    appellant, who was between 12 and 14 years old at the time of the incidents
    alleged.  R.G. was four years younger than the appellant.  Four videotaped
    statements that R.G. gave to the police were admitted pursuant to s. 715.1 of
    the
Criminal Code
, R.S.C. 1985, c. C-46.

The Mosport Incident

[5]

R.G. was 11 years old at the time of the trial. R.G. stated that when he
    was seven or nine years old, he went with his mother to an event at Mosport
    where he shared a tent with the appellant and another youth, D.H. In a
    videotaped statement to the police, R.G. said he walked into the tent and saw
    the appellant and D.H. masturbating. He refused their invitation to join in the
    activity, and the appellants demand that he engage in oral sex. According to R.G.,
    at that point, the appellant grabbed his head and forced him to perform
    fellatio.

[6]

D.H., who was 15 years old at the time of trial, gave a statement to the
    police about the events at Mosport. D.H. said he saw the appellant and R.G.
    fully naked, with R.G. on top of the appellant, and they were playing with each
    others privates. In his statement, D.H. said the touching of private parts
    between the appellant and R.G. continued the following night. D.H. at first denied
    that he had masturbated with the appellant in the tent, although he eventually
    admitted to doing so. At trial, D.H. testified that the appellant and R.G. only
    engaged in sexual activity on one night.

[7]

The appellant confirmed that he was at Mosport one weekend with R.G., D.H.,
    and others, where he shared a tent with D.H. and R.G. He testified that on the
    first evening R.G. came into the tent and asked if he could jack off with the
    appellant and D.H., at which point R.G. removed his clothes and jumped on top
    of the appellant. According to the appellant, he pushed R.G. away and that was
    the end of the matter.

The Toy Room Incident

[8]

R.G. also gave statements to the police about an incident in a toy room during
    a sleepover at the appellants house. In his first statement, R.G. stated the
    appellant had forced him to perform oral sex. In a second statement, R.G. said
    the appellant made him bend over and he put his dink in my bum. At trial, R.G.
    testified that the forced fellatio had only occurred at Mosport, not in the toy
    room.

[9]

The appellant denied R.G.s allegation.

Incidents Involving Teddy Bears, Dolls and a Latex Glove

[10]

In
    his third statement to the police, R.G. said he made voodoo dolls with the
    appellant by cutting up teddy bears, replacing the stuffing with safety pins
    and other sharp objects, and sewing them back together. Afterwards, the appellant
    told R.G. that he had cut some of his pubic hairs and put them inside the
    bears. R.G. also reported that he saw the appellant take a Barbie doll and rub
    it against his penis.

[11]

In
    his final statement to the police, R.G. stated that the appellant had put a
    latex glove on his hand and then shoved his fingers up my bum and his bum.

[12]

The
    appellant also denied these allegations.

The Fort Incident

[13]

B.P.
    knew both the appellant and R.G. and was 15 years old at the time of the trial.
    B.P. gave evidence about an incident that occurred in a fort in the appellants
    backyard when R.G. was about seven years old. B.P. stated that he was
    masturbating with the appellant when R.G. arrived at the fort. He then saw the
    appellant and R.G. engage in oral and anal sex.

[14]

R.G.
    did not complain about this incident in any statement to the police, nor did he
    testify about it.

[15]

The
    appellant testified that one day R.G. came into his fort while he and B.P. were
    masturbating. According to the appellant, R.G. asked to join in, but the appellant
    said no, as he was finished. The appellant denied forcing R.G. to participate
    in oral or anal sex.

Decision of the Trial Judge

[16]

The
    appellant acknowledged that he had masturbated with R.G., which led the trial
    judge to convict the appellant of the offence of exposing his genital organs to
    a person who was under the age of 16 years, contrary to s. 173(2) of the
Criminal
    Code
. Although the appellant denied all the allegations of oral and anal
    sex involving R.G., the trial judge also found the appellant guilty of sexual
    assault, sexual interference and invitation to sexual touching.

III.

FIRST GROUND OF APPEAL: THE DISMISSAL OF THE DEFENCE MISTRIAL MOTION

[17]

The
    appellants first ground of appeal concerns the trial judges denial of the
    defence request for a mistrial, made after the verdicts were entered but before
    sentencing.

The Reasons of the Trial Judge

[18]

The
    trial judge delivered his reasons for judgment on May 25, 2012. Sentencing was
    scheduled for July 3, 2012.

[19]

On
    June 11, 2012, the trial judge received a letter from R.G.s grandfather. In
    the letter, the grandfather wrote, in part:

The evening following your verdict my grandson told me in
    confidence that what he told Your Honour in court was only a few of the times
    that these things happened and he estimated over 100 times these things have
    happened.

[20]

The
    trial judge provided counsel with the grandfathers letter. The appellant
    thereupon moved for a mistrial, maintaining that the post-conviction statement
    by R.G. set out in his grandfathers letter was capable of undermining R.G.s credibility
    and his version of events given at trial. The appellant sought to examine R.G. on
    the motion to confirm the statement and explain what it meant.

[21]

The
    trial judge denied the mistrial motion and the request to examine R.G. on the
    basis that the proposed fresh evidence (the grandfathers letter) did not meet
    the fourth criterion for admissibility set out in
R. v. Palmer
, [1980]
    1 S.C.R. 759, namely, that the evidence, if believed, could not reasonably be
    expected to have affected the result at trial.

Positions of the Parties

[22]

The
    appellant submits that the statement made by R.G. to his grandfather was a
    game-changer, significantly escalating the number of instances of sexual
    activity with the appellant alleged by R.G. from those he had recounted at
    trial. As a result, the appellant says the statement created a material
    inconsistency in R.G.s account of events, raising concerns about his
    credibility. By failing to allow the appellant to examine R.G. on his statement
    to his grandfather or to declare a mistrial, the trial judge denied the
    appellant the right to make full answer and defence, resulting in a miscarriage
    of justice.

[23]

The
    Crown submits that in refusing to declare a mistrial, the trial judge did not
    err in the exercise of his discretion. The trial judge was in the best position
    to assess the significance of the statement and whether it could have affected
    the result he reached. His decision was not clearly wrong, nor was it based on
    any erroneous principle. Accordingly, it attracts deference from this court.

Analysis

[24]

The
    trial judge correctly identified the legal principles applicable to a motion to
    set aside a finding of guilt and declare a mistrial: a trial judge who has made
    a finding of guilt on disputed facts has the authority to vacate the
    adjudication of guilt at any time before the imposition of sentence or other
    final disposition, but such authority should be exercised only in exceptional
    circumstances and in the clearest of cases:
R. v. Lessard
(1976), 30
    C.C.C. (2d) 70 (Ont. C.A.), at p. 73;
R. v. Kippax
, 2011 ONCA 766, 286
    O.A.C. 144, at para. 62, leave to appeal refused [2012] S.C.C.A. No. 92.

[25]

Mistrials
    are a remedy of last resort and should only be declared to avoid miscarriages
    of justice:
R. v. A.G.
, 2015 ONCA 159, 124 O.R. (3d) 758, at para. 50.
    A trial judge is best positioned to assess whether a mistrial is warranted in
    the circumstances. Consequently, an appellate court owes a trial judge significant
    deference on a determination whether to grant a mistrial, and should only
    interfere with a decision to deny a mistrial if that decision is clearly wrong
    or based on an erroneous principle:
A.G.
, at paras. 51 and 52.

[26]

As
    the trial judge observed, the criteria in
Palmer
provide helpful
    guidance to a trial judge faced with an application to re-open a trial after a
    finding of guilt has been recorded:
Kippax,
at para. 63. In
    considering whether the statement attributed to R.G. in the grandfathers letter
    met the
Palmer
criteria, the trial judges analysis focused on the
    fourth
Palmer
criterion  i.e., whether the evidence, if believed,
    could reasonably, when taken with the other evidence adduced at trial, be
    expected to have affected the result.

[27]

The
    trial judge concluded that the fourth
Palmer
criterion was not met in
    this case and the circumstances are not such that the extraordinary relief
    sought should be granted. He stated:

Assuming the grandfather accurately reported what RG told him,
    there is no basis upon which to conclude that this could affect my findings of
    credibility or fact. In this regard, I note that as RG is a young boy, his
    reference to over 100s of times should not be taken literally; it is more
    likely a phrase that means much more than I said before. Moreover, it is mere
    speculation to say this is a reference to sexual assaults. Indeed, the contrast
    in the letter between a few times and over 100s of times, as well as the
    evidence at trial suggests otherwise. RG said that he was sexually assaulted by
    the Defendant on two occasions but testified about more instances of other
    sexual activity. If one were to guess at the meaning of the statement, a likely
    explanation is that it refers to the other sexual activity  conduct that other
    witnesses, including the Defendant, in part, confirmed happened on numerous
    occasions.  The initial disclosure by RG was limited; it expanded over time in
    several police interviews and testimony before me. This was the subject of much
    cross-examination at trial. Having regard to all the evidence heard, the
    statement reported by the grandfather adds little to issues already litigated
    and decided.

[28]

The
    appellant submits that the trial judge misapprehended the relevance and
    probative value of R.G.s post-conviction statement and, instead, engaged in a
    highly speculative interpretation of its meaning. While it was inappropriate
    for the trial judge to guess at the meaning of the statement, in my view his
    conclusion that the statement added little to issues already litigated and
    decided was not clearly wrong or based on an erroneous principle.

[29]

Four
    charges alleging sexual offences by the appellant against R.G. were before the trial
    judge for adjudication. The trial judge was in the best position to determine
    whether there was any basis on which to conclude that the statement R.G. made
    to his grandfather, if accepted as true, could have affected his findings of credibility
    or fact in respect of those charges. The trial judge heard all the evidence at
    trial and observed the witnesses who testified, including R.G. Many of them
    were youthful witnesses. The trial judges trial reasons confirm that he was
    alive to the care required to assess the reliability and credibility of their
    evidence as youthful witnesses, including their statements to the police.

[30]

As
    well, this was not a case where the only evidence about the alleged incidents
    came from the complainant and the appellant. On the contrary, both D.H. and B.P.
    gave evidence that they had witnessed sexual activity between the appellant and
    R.G.

[31]

In
    those circumstances, deference is owed to the trial judges conclusion that the
    statement attributed to R. G.  he estimated over 100 times these things have
    happened  would not have affected the findings of credibility or fact he made
    in respect of the incidents that were before him.

[32]

The
    trial judges reasons on the mistrial motion confirm that he appreciated and
    correctly applied the principles governing mistrial applications and the
Palmer
criteria for the admission of fresh evidence in the context of the whole of the
    evidence led at trial. His discretionary decision to dismiss the mistrial motion
    is neither clearly wrong nor based on an erroneous principle. I therefore would
    reject this ground of appeal.

IV.

SECOND GROUND OF APPEAL: CREDIBILITY ASSESSMENTS MADE BY THE TRIAL JUDGE

Positions of the Parties

[33]

The
    second ground of appeal advanced by the appellant concerns the credibility findings
    made by the trial judge. The appellant did not address this ground during oral
    argument, but relied on the submissions contained in his factum. The appellant
    submits that the trial judge failed to scrutinize meaningfully the evidence
    presented by the Crown in relation to R.G.s allegations, despite taking a
    rigorous approach to the evidence of the accused. In making this submission,
    the appellant contends that the trial judge erroneously concluded that R.G.s
    account of events was confirmed by the testimony of two Crown witnesses, B.P.
    and D.H. He also maintains that the trial judge failed to adequately assess inconsistencies
    in R.G.s testimony.  Finally, the appellant challenges the sufficiency of the trial
    judges reasons for his credibility findings and for his conclusion regarding
    the appellants culpability for the offences involving R.G.

[34]

The
    Crown submits that the trial judge did not err in his treatment of the evidence
    and the appellants complaints amount to no more than disagreements with the trial
    judges appreciation of the evidence before him.

Analysis

[35]

The
    appellant acknowledges that in order to establish that the trial judge erred by
    applying different standards of scrutiny to his evidence and that of the Crown,
    he must point to something in the reasons of the trial judge or perhaps
    elsewhere in the record that make it clear that the trial judge had applied
    different standards in assessing the evidence of the appellant and the
    complainant:
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at
    p. 491.

[36]

To
    make his argument, the appellant focuses on the sufficiency of the trial judges
    findings about the credibility and reliability of the testimony of the
    principal witnesses and the adequacy of the reasons he gave for those findings.

[37]

Where
    a case turns largely on determinations of credibility, the sufficiency of the
    reasons should be considered in light of the deference afforded to trial judges
    on credibility findings. Only rarely will deficiencies in a trial judges
    credibility analysis warrant appellate intervention, although a failure to
    sufficiently articulate how credibility concerns have been resolved may rise to
    the level of reversible error:
R. v. Dinardo
, 2008 SCC 24, [2008] 1
    S.C.R. 788, at para. 26;
R. v. T.S.
, 2012 ONCA 289, 284 C.C.C. (3d)
    394, at para. 46.

[38]

In
    this case, the trial judge provided thoughtful and cogent reasons in support of
    his credibility findings. With respect to the Crowns witnesses, he reviewed
    the evidence in some detail, including the evidence that weakened the strength
    of the Crowns case regarding the charges related to R.G. He took specific
    account of inconsistencies in the witnesses testimony, the significance of
    R.G.s incremental disclosure of the appellants sexual acts, and the actions
    and impact of the conduct of the complainants mother on R.G.s statements to
    the police. That the trial judge was careful in his review of the evidence is
    apparent from his self-direction that the testimony of R.G.s mother, for
    reasons the trial judge explained, should be approached with caution.

[39]

Contrary
    to the appellants submission, in my view the trial judges evaluation of the
    appellants evidence was sufficient, intelligible, and even-handed. The trial
    judge provided detailed reasons for rejecting the appellants denial of the
    sexual activities alleged, focusing on both the appellants own testimony and
    that of the Crown witnesses where it contradicted the appellants account of
    events. As he was obliged to do, the trial judge evaluated the appellants
    credibility in the context of the evidence as a whole. I see no imbalance in
    his analysis of the appellants testimony or in his approach to the evidence as
    a whole.

[40]

Nor
    do I accept the appellants contention that the trial judge erred by relying on
    parts of the evidence of B.P. and D.H. as confirmatory of key aspects of R.G.s
    account that he had been forced to engage in oral and anal sex with the
    appellant.

[41]

B.P.
    testified that he witnessed the appellant forcing anal sex on R.G., while D.H.
    testified that he observed R.G. and the appellant naked, with R.G. on top of
    the appellant, and both touching each others private parts. The trial judge
    was alert to the inconsistencies between these witnesses evidence and that of
    R.G., including that R.G. had not mentioned the fort incident in any of his
    statements. It was open to him to accept the core features of their testimony,
    which clearly implicated the appellant in sexual activity with R.G, who,
    because of his age, was incapable of consent. The trial judge provided clear
    and direct explanations of the basis for his findings that the evidence of B.P.
    and D.H. corroborated key aspects of R.G.s testimony.

[42]

R.G.
    was only about seven years of age when the fort incident occurred and
    approximately nine years old at the time of the Mosport incident. He was 11
    years of age at the time of trial. In these circumstances, it was appropriate
    for the trial judge to consider R.G.s age and maturity when evaluating his
    credibility and the reliability of his testimony, especially in light of R.G.s
    reluctance to disclose the appellants acts:
R. v. Barua
, 2014 ONCA
    34, 315 O.A.C. 83, at para. 25.

[43]

Finally,
    the trial judges reasons for convicting the appellant of the charges relating
    to R.G. are firmly anchored in the evidentiary record. They afford ample scope
    for meaningful appellate review. Accordingly, they meet the standard for
    sufficiency of reasons established by
R. v. Sheppard
, 2002 SCC 26, [2002]
    1 S.C.R. 869,
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, and
    related cases.


V.

DISPOSITION

[44]

For
    the reasons given, I would dismiss the appeal.

Release: November 6, 2015 (EAC)

David
    Brown J.A.

I
    agree E.A. Cronk J.A.

I
    agree Gloria Epstein J.A.


