



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. R.B., 2017 ONCA 75

DATE: 20170126

DOCKET: C58815

Weiler, Pepall and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.B.

Appellant

Jill D. Makepeace, for the appellant

Philippe G. Cowle, for the respondent

Heard: January 9, 2017

On appeal from the conviction entered on March 6, 2014 by
    Justice Patricia C. Hennessy of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault and invitation to sexual
    touching on K.O., the daughter of his former girlfriend.

[2]

He appeals his conviction and raises two broad grounds of appeal. The
    first ground of appeal alleges that the trial judge interfered with defence
    counsels cross-examination of the complainant such that she diverted counsel
    from pursuing relevant lines of inquiry and impeded the dynamic flow. The second
    ground of appeal alleges that the trial judges approach to the case in her
    reasons was unbalanced, favoured the Crown and undermined trial fairness. She
    failed to resolve conflicts between the complainants evidence and the evidence
    of defence witnesses on material issues and she failed to meaningfully
    scrutinize aspects of the complainants evidence.

[3]

We rejected these contentions and we did not call upon the Crown to
    respond. Accordingly, we dismissed the appeal with reasons to follow shortly. These
    are those reasons.

(1)

The trial judges instructions did not interfere with the ability to
    cross-examine

[4]

There is a strong presumption that a judge has not unduly intervened in
    a trial. The question of whether the interventions led to an unfair trial is
    undertaken from the perspective of a reasonable observer who was present
    throughout the trial:
R. v. Hamilton
, 2011 ONCA 399, 271 C.C.C. (3d)
    208, at paras. 29-30. Intervening frequently, without more, does not lead to a
    miscarriage of justice:
R. v. Kitaitchik
(2002), 166 C.C.C. (3d) 14
    (Ont. C.A.). The presence or absence of objections from defence counsel to the
    judges interventions is a relevant factor, although it is not determinative:
R.
    v. Lahouri
,

2013 ONSC 2085,
280 C.R.R. (2d) 249
    (S.C.), at para. 10.

[5]

A full review of the cross-examination leads us to conclude that defence
    counsel conducted a thorough cross-examination. Defence counsel at trial never
    complained that he was prevented from exploring a relevant issue, nor does the
    transcript suggest such interference.

[6]

Although the appellant suggests that the judge placed the authority of
    her office on the side of the prosecution, the record reflects no such error. The
    judge did not engage in questioning of the witness, nor take on the role of
    counsel as discussed in
Lahouri
,

at para. 8.

[7]

The appellants objections focus on three areas of cross-examination of
    the complainant. The first relates to the complainants relationship with her
    mother. Given the fact that the complainant, then a teenager, became visibly
    upset and needed to slow down and gain control of her emotions, the trial
    judges intervention was appropriate. It was necessary to have clarity in the
    evidence and the trial judge was entitled to ascertain how the complainants
    relationship with her mother was relevant and the trial judge explained that
    she was prepared to allow counsel to put propositions to the complainant so
    that they could later be contradicted by other witnesses. Defence counsel never
    objected to this approach, nor did he suggest it would prevent him from
    eliciting relevant evidence.

[8]

The trial judge also interjected to ensure that the witness listened to
    the question and did not begin to answer the question before it had been fully
    put. For example, the trial judge was entitled to ensure that the question put
    in cross-examination by defence counsel about a conversation the complainant
    had with her mother, that the complainant began to answer before he finished,
    related to a conversation in the presence of Vanessa Legault, a friend of the
    mother. The need for the complainant to slow down and wait for the questions is
    further borne out by defence counsel himself saying to the complainant at a
    later point, Maybe you just want to wait until I ask the question, okay?.

[9]

A third area of complaint relates to questions about whether the
    complainant spat out the appellants ejaculate into the toilet or the sink or
    the bathroom after he forced her to perform fellatio on him in the bedroom when
    she was between the ages of four and six. The complainant testified that the
    appellant had told her to swallow it but that she said she had to go to the
    bathroom and had spat it out. She further testified in her evidence in chief
    that she was going to try spitting in the toilet but then had stood on something
    that enabled her to spit into the sink. In her cross-examination, the
    complainant said she had spat the ejaculate into the toilet too. She said, It
    was kind of like I was spitting it out in the toilet and then I was kind of
    spitting it out and like throwing up kind of. So I was getting ready to swallow
    it and then I started spitting it a little bit in the toilet and then I run  and
    then I went to the sink. Defence counsel put to the complainant that she had
    not said she spat into the toilet in her evidence in chief. She agreed. Defence
    counsel then followed up with further questioning on whether she had ever spat
    into the toilet, on what occasion, and whether it was after the first time she
    spat in the toilet. After this the trial judge intervened telling defence
    counsel that his questions were not helpful to her assessment of the
    credibility of the complainant and that she worried his questions were to throw
    the witness off. The trial judge asked counsel the purpose of the questioning
    and he indicated that it went to credibility, the unreliability of her memory,
    and whether she was making the incident up. The trial judge told him he could
    put a proposition to the witness and if it was contradicted by the evidence he
    could go on and make it a subject of argument. Defence counsel agreed that he
    did not need any further evidence on this point.

[10]

In re-examination, the Crown showed the complainant her June 9, 2010
    statement to the police which indicated that she told the officer, I just spit
    it out into the sink or the toilet or something.

[11]

A judge may intervene in the proceedings for numerous reasons. For
    example, a need to control the courts process, a need to focus the questions
    being asked so that the evidence is received in a clear and cohesive manner, a
    need to avoid repetitive or irrelevant questions. The trial judge has a role to
    play in ensuring that a complainant, like any other witness, is treated fairly.
    The examples of the trial judges interjections discussed above and the other
    interjections by her show that she was engaging in that task. The appellant has
    not identified any relevant issue that he was prevented from exploring. A
    reasonable observer would not have concluded from the trial judges
    interjections that they rendered the appellants trial unfair.

(2)

The trial judges reasons were careful, detailed, and balanced and did
    not reflect an uneven standard of scrutiny

[12]

As explained by this court in
R. v. Aird
,

2013 ONCA 447, 307 O.A.C. 183,
    at para. 39, citing
R. v. Howe
(2005),

192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, the uneven scrutiny
    argument is a difficult argument to make successfully, first, because
    credibility findings are the province of the trial judge and attract a very
    high degree of deference on appeal and secondly, such arguments are seen by
    appellate courts with skepticism and as a veiled invitation to reassess the
    trial judges credibility determinations.

[13]

The trial judge gave lengthy, detailed and careful reasons for her
    findings. On the specifics raised by the appellant, it is clear that the trial
    judge viewed the evidence of Vanessa Legault as being deeply flawed and
    incapable of undermining the complainants evidence. As for the one time
    conversation with Ashley Smith four years earlier in which it was alleged that the
    complainant said she had been raped at knife point, the trial judge was not
    required to make an express finding in this regard; it is clear that she did
    not place much weight on this alleged conversation. Having regard to the
    evidence of the complainants statement to her step-mother, her statement to
    the police, and her sworn testimony, the trial judge was entitled to do so.
    Regarding the appellants eye colour and an incident in which she was struck
    with a TV antennae, the findings made by the trial judge were open for her to
    make.

[14]

We conclude that the trial judges reasons were balanced and did not
    undermine the fairness of the trial.  We reject this ground of appeal.

[15]

The appeal is dismissed.

Karen M. Weiler
    J.A.

S.E. Pepall J.A.

B.W. Miller J.A.


