



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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






CITATION: R. v. P.G., 2011 ONCA 50



DATE: 20110119



DOCKET: C47789



COURT OF APPEAL FOR ONTARIO



Weiler, Gillese and Blair JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



P.G.



Appellant



Michael S. Mandelcorn and R. Michael Rode, for the appellant



Matthew Asma, for the respondent



Heard and released orally: January 13, 2011



On appeal from the conviction
          entered on April 12, 2007 and the sentence imposed on May 23, 2007 by Justice
          Rommel G. Masse of the Ontario Court of Justice.



ENDORSEMENT



[1]

The appellant appeals his conviction for aggravated assault, assault
    with a weapon and obstruction of justice.  Although his notice of appeal also
    seeks leave to appeal sentence, leave was not pursued and is dismissed as
    abandoned.

[2]

Inasmuch as the complainant was a hostile witness at trial, counsel for
    the Crown sought to have two out of court statements the complainant made
    admitted into evidence on the basis of the principled exception to the hearsay
    rule.  The first was the complainants out of court statement made at the
    hospital to Nurse Cowan admitted into evidence as a principled exception to the
    hearsay rule.  The second was the complainants video-taped statement made to
    the police.  The necessity of admitting the statements was not contested. 
    There, as here, the issue is the threshold reliability of the statements which
    the trial judge admitted into evidence.

[3]

The appellant submits that the threshold of reliability was not met for
    a compendium of reasons.  One is that the notes of Nurse Cowan contained the
    wrong date.  Another is that Nurse Cowan was an agent of the police or not a
    disinterested party.  Nurse Cowan did not attend solely to treat the
    complainant but obtained the complainants consent to take pictures of her
    injuries and to report the matter to the police.  There is no merit to either
    of these arguments and we dismiss them.

[4]

The appellant further submits that the trial judge erred in holding that
    the statement to Nurse Cowan was reliable because both she and complainant were
    available for cross-examination at trial.  The complainant testified at trial
    that she could not remember making the statements and because she was drugged
    up on painkillers.  Since the complainant could not remember what she said,
    the appellant submits that any cross-examination of her with regard to these
    statements could not be effective.

[5]

In our opinion, the trial judge did not err in noting that both Nurse
    Cowan and the complainant were available to be cross-examined at trial.  Nurse
    Cowans testimony at trial was relevant to proving that the complainant made
    the statements to her despite the complainants claim that she could not
    remember doing so.  The complainants claim that she could not recall what she
    said at the hospital was doubtful given that she gave a very similar statement
    to the police some months later.  Furthermore, there is no general rule that a
    hearsay statement cannot be admitted in the absence of an opportunity to
    meaningfully cross-examine a declarant.  A declarants lack of memory of the
    prior statement is merely one factor to take into account when determining the
    reliability of the statement.  The trial judge found that the complainant made
    the statements while she was still traumatized by the attack and was therefore
    not in a position to be concocting the statement.

[6]

The determination of whether these two hearsay statements were
    sufficiently reliable as to be admissible required the trial judge to perform a
    full assessment of the facts.  His decision is therefore entitled to deference.
     He was clearly cautious about relying on evidence from a complainant who later
    recanted at trial, but found that her statements to Nurse Cowan and the police
    were truthful.

[7]

The appellant has not identified any material misapprehension of the
    evidence or error in principle that would require this court to interfere with
    the trial judges decision. The trial judge gave extensive and persuasive
    reasons as to why the complainants statements to the nurse and to the police
    were reliable.

[8]

Accordingly, the appeal is dismissed.

K.M. Weiler J.A.

E.E. Gillese J.A.

R.A. Blair J.A.


