



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), (2.1),
    (2.2), (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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)        any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)       REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1)
    Subject to subsection (2.2), in proceedings in respect of an offence other than
    an offence referred to in subsection (1), if the victim is under the age of 18
    years, the presiding judge or justice may make an order directing that any
    information that could identify the victim shall not be published in any
    document or broadcast or transmitted in any way.

(2.2) In
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice shall

(a) as
    soon as feasible, inform the victim of their right to make an application for
    the order; and

(b) on
    application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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. S.M., 2017 ONCA 878

DATE: 20171120

DOCKET: C63543

Strathy C.J.O., Doherty J.A. and McCombs J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

S.M.

Respondent

Nancy Dennison, for the appellant

William Thompson and Samara Secter, for the respondent

Heard: November 8, 2017

On appeal from acquittals entered by Justice Robert T.
    Knott of the Ontario Court of Justice on March 2, 2017.

REASONS FOR DECISION

[1]

The respondent was charged with sexual assault and related offences.  The
    trial judge acquitted on all counts.  The Crown appeals.

[2]

E.M., the complainant,
described two sexual assaults
    committed by the respondent, her biological father.  The incidents allegedly
    occurred about two weeks apart, some 10 or 11 years earlier when E.M. was 10 or
    11 years old.

[3]

On the evidence, E.M. and the respondent had no
    relationship for the first 10 years of E.M.s life.  Eventually, she learned of
    her father and was introduced to him.  Her mother arranged for E.M. to spend
    time with the respondent on alternate weekends over several weeks.  E.M.
    testified that she was sexually assaulted on two separate occasions during those
    visits.

[4]

There was uncertainty in the evidence, explained in
    part by the fact that the relevant events occurred about 11 years earlier,
    about the timing of the various visits by E.M. to the respondent, and the overall
    time period during which those visits occurred.

[5]

E.M. testified that both sexual assaults
occurred after her birthday, which was January 12
th
when she turned
    11, but before the respondent suffered a serious eye injury, requiring him to
    wear a patch over one eye.  Independent evidence showed that the respondent
    suffered the eye injury on January 6, 2006.  Consequently, the sexual assaults
    could not have occurred before the eye injury on January 6
th
, but
    after E.M.s birthday on January 12
th
.  This part of E.M.s evidence
    was clearly wrong.

[6]

The respondent did not testify.

[7]

On appeal, the Crown and the respondent agree that
    E.M.s evidence placing the alleged assaults between the date the respondent
    suffered an eye injury and her 11th birthday could not have been accurate. 
    Both also agree that this feature of E.M.s evidence had to be taken into
    account in assessing the overall reliability of her evidence.  The respondent
    argued that this was a crucial feature of E.M.s evidence that spoke strongly
    against the reliability of her evidence.  The trial judge understood this
    submission and took this aspect of E.M.s evidence into account in assessing
    the reliability of her evidence (see reasons, at p. 16).

[8]

The Crown submits, however, that the trial judge went
    further than using this part of E.M.s evidence in assessing the reliability of
    her testimony.  The Crown argues that the trial judge treated the timeframe
    alleged in the indictment (and later amended) as an essential element of the
    offence, essentially part of the
actus reus
, to
    be proved beyond a reasonable doubt.

[9]

At least three comments in the trial judges reasons support the Crowns
    position that the trial judge did treat the time within which the offences occurred
    as an essential element of the offence (see reasons, at pp. 2, 13 and 19).  For
    example, at p. 19, the trial judge said:

I cannot, with any certainty, and certainly
    not beyond a reasonable doubt, say [in] what timeframe the incident could have occurred.

[10]

As a general rule, the Crown is not required to
    prove beyond a reasonable doubt that the alleged offence occurred within the
    timeframe set down in the indictment: see
R. v. B. (G.)
(1990), 56 C.C.C. (3d) 200, at 215-16 (SCC);
Criminal
    Code
, s. 601(4.1).

[11]

There is nothing inherent in the nature of the charges
    brought against the respondent that would make the time at which those offences
    occurred an essential element of the offence.  For example, this is not a case
    in which the evidence raised the possibility that if the acts were committed at
    a certain time, they were no longer criminal because of the age of the
    complainant.  The conduct alleged in this case remained criminal regardless of
    when it occurred.

[12]

The respondent contends that this case falls
    within that category of cases in which fairness to the accused demands that the
    Crown be required to prove that the offence occurred within the timeframe
    alleged in the indictment.  Broadly speaking, these are cases in which an
    accused can demonstrate a prejudice to his or her ability to properly defend
    the case flowing from the Crowns attempt to prove that the offences occurred
    at some time outside of the time period alleged in the indictment.

[13]

We do not accept that the respondent was
    prejudiced in the relevant sense by a finding that the assaults occurred
    outside of the timeframe alleged in the indictment.  The respondent had clear
    notice of the legal and factual nature of the allegations and the factual
    context in which they were said to have occurred.  The Crown maintained that
    the respondent sexually assaulted his daughter on two occasions during the
    weekend visits that occurred on alternate weekends over several weeks.  The
    actual dates of the alleged offences, or the timeframe within which they
    occurred, added nothing that would assist the respondent in identifying the
    allegations.

[14]

Nor did the timeframe have anything to do with
    the defence advanced by the respondent.  Although the respondent did not
    testify, it was the defence position that the alleged assaults did not occur
    and that E.M. was not a reliable witness.  That defence in no way depended on,
    or took its shape from, the timing of the alleged sexual assaults.

[15]

This is not a case in which an accused advanced
    an alibi-like defence in response to the timeframe alleged by the Crown in the
    indictment, only to have the Crown argue for a conviction based on events
    outside of the timeframe.  There is simply no reason to think that the defence
    advanced here hinged in any way on the timeframe alleged in either the original
    indictment or the amended indictment.

[16]

In a related argument, the respondent argues
    that he was prejudiced by the amendment to the indictment at the end of the
    Crowns case.  The Crown appreciated that the complainants evidence as to the
    timeframe could not be correct.  For reasons that are not entirely clear, the Crown
    sought to amend the indictment to limit the timeframe alleged to the period
    before the respondent suffered his eye injury.  The trial judge amended the
    indictment.

[17]

The respondent argues that the Crown effectively
    elected to narrow the allegation and that the defence is entitled to rely on
    that election in defending against the charge.

[18]

This argument is essentially a reformulation of
    the unfairness argument.  The question remains  can the respondent demonstrate
    any unfairness to the defence should the Crown be allowed to rely on events
    outside of the timeframe alleged in the indictment as amended?  As pointed out
    above, the defence did not turn on the timeframe in the indictment.  It turned
    on the reliability of E.M.s evidence.  Neither the substance of the
    respondents argument that her evidence was unreliable, nor the potential force
    of that argument, was affected by the amendment to the indictment.  Whatever
    the timeframe alleged in the indictment, it was clear that E.M.s recollection
    as to when the alleged assaults occurred was in error.  The impact of that
    error on the reliability of her evidence had nothing to do with the timeframe
    alleged in the indictment.

[19]

We are satisfied that the Crown did not have to
    prove that the alleged offences occurred within the timeframe alleged in the
    indictment.  Having regard to the reasons as a whole, we conclude that the
    trial judge did treat the timeframe alleged in the indictment as an essential
    element of the offence.  The final words in his reasons make that clear:

I cannot say that the incidents occurred
    between November 25, 2005 and January 5, 2006.  The accused will be found not
    guilty.

[20]

The trial judge erred in law in requiring the
    Crown to prove beyond a reasonable doubt that the offences occurred within the
    timeframe alleged in the indictment.  The error was crucial.  The trial judge expressed
    concerns about the reliability of E.M.s evidence.  The concerns were based in
    part on her clearly erroneous recollection of when the offences occurred.  The
    trial judge did not, however, come to any conclusion as to the reliability of E.M.s
    evidence, but instead wrongly decided the case on the ground that the Crown had
    failed to prove beyond a reasonable doubt that the offence occurred within the
    timeframe alleged in the indictment.  It may well be that a trial judge would
    find E.M.s evidence sufficiently reliable to satisfy the Crowns burden of
    proof.  There must be a new trial on all charges.

[21]

The appeal is therefore allowed and a new trial
    ordered.


G.R. Strathy C.J.O.

Doherty J.A.

D. McCombs J.


