



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. A.V., 2020 ONCA 58

DATE: 20200129

DOCKET: C64964

Pardu, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.V.

Appellant

Anthony Moustacalis, for the appellant

Adam Wheeler, for the respondent

Heard: January 9, 2020

On appeal from the conviction entered on October 19, 2017
    and the sentence imposed on February 9, 2018 by Justice Grant R. Dow of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION


[1]

The appellant was convicted of sexual interference, sexual exploitation,
    and sexual assault against the complainant, his stepdaughter. The complainant
    alleged that, over a period of several years beginning when she was in grade
    six or seven, the appellant required her to massage and crack his back. This
    occurred while the appellant lay on his bed. The complainant testified that the
    appellant touched her thighs and vagina once her brother left the room.

[2]

The offences were alleged to have occurred while the complainants
    mother was at work. The complainant alleged that on one occasion, the appellant
    applied lotion to her legs and licked her vagina. She also alleged that the
    appellant touched her vagina through her jeans as they were watching a movie in
    a hotel room, while the complainants mother was taking a shower.

[3]

The appellant informed the court that his request for leave to appeal
    sentence was abandoned.

[4]

The appellant raised several grounds of appeal against conviction in his
    factum, but focused on two issues at the hearing. The appellant says that the trial
    judge erred in admitting prior consistent statements and erred in relying on
    those statements for the proof of their contents.

[5]

We have concluded that the prior consistent statements were properly
    admitted. However, as we will explain, we accept the appellants argument that
    the trial judge erred in relying on the prior consistent statements as proof
    the offences occurred.

[6]

Accordingly, the appeal is allowed for the following reasons.

Prior consistent statements were admitted properly

[7]

The trial judge admitted evidence from a childhood friend of the
    complainant who testified that, when they were in grade six or seven, the complainant
    had told her that the appellant had come into her bedroom and assaulted her,
    and that they had discussed it a number of times after that. The complainants
    high school boyfriend testified that around 2012, while they were watching a movie
    that concerned sexual abuse, the complainant told him that the appellant had
    abused her.

[8]

The appellant says that there was no allegation of recent fabrication
    that justified the admission of this evidence.

[9]

We disagree.

[10]

It is clear that trial counsel for the appellant put the question of
    recent fabrication in play in the course of cross-examining the complainant. In
    particular, he suggested that she had made up the allegations because she was
    upset with certain events in her home life; that she was saying nasty things
    about the appellant because it was a way of getting back at the appellant and
    her mother; and that she got the idea to make allegations against the appellant
    from watching a movie with her boyfriend.

[11]

As a result, it was open to the trial judge to use the complainants
    prior consistent statements to address the recent fabrication allegation and
    the suggestion that the complainant had a motive to lie about the appellant.

[12]

The evidence of the complainants childhood friend was inconsistent with
    the complainants, in that the friend said that the complainant told her the
    abuse occurred in her bedroom rather than in the appellants bedroom, but the
    trial judge explained why he considered this a minor detail. This was the trial
    judges call to make, and there is no basis to interfere with it on appeal.
    Although the childhood friend testified that the complainant spoke of a single
    incident rather than multiple incidents, as alleged by the complainant, her evidence
    was called in order to rebut the recent fabrication/motive to lie allegation,
    rather than to corroborate the complainants evidence. No further analysis was
    required.

The
W.(D.)
analysis

[13]

The appellant argues that the trial judge erred in his
W.(D.)

analysis by relying on the prior consistent statements for their truth in
    corroborating the complainants evidence.

[14]

We agree, and allow the appeal on this basis.

[15]

The trial judge properly instructed himself as to the requirements from
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742,
and provided reasons for rejecting the evidence of the appellant and for
    finding that the appellants evidence did not raise a reasonable doubt. He recognized
    that his rejection of the appellants evidence was insufficient to establish
    guilt beyond a reasonable doubt and went on to consider the evidence as a
    whole.

[16]

This case turned on credibility. The trial judge was entitled to use the
    evidence of the complainants prior consistent statements to rehabilitate her
    credibility, given the motives to lie and recent fabrications that trial
    counsel attributed to her. But once this was done, the trial judge had to
    determine that her evidence was credible without relying on the prior
    consistent statements for proof of their contents to corroborate the
    complainants evidence.

[17]

The key passage in the decision is this:

Counsel for [the appellant] also submitted to me that disbelief
    of the accuseds evidence does not satisfy the burden of proof beyond a
    reasonable doubt. Again, I entirely agree. However, the vast majority of sexual
    assault prosecutions turn on the evidence of the two witnesses involved in the
    conduct alleged.
Here there is not only evidence of [the
    complainant] about what occurred, but that she revealed it to a senior
    elementary school friend, her first boyfriend, her aunt, and her mother before
    going to the police. This reinforces my being satisfied beyond a reasonable
    doubt of the sexual contact and of the elements of the offences charged having
    occurred
.

[Emphasis added.]

[18]

The Crown submits that this passage must be read in light of the
    totality of the evidence and the rest of the trial judges analysis. The Crown
    says that the
W.(D.)
analysis was complete when the judge made these
    statements and the only issue remaining was whether the complainants evidence
    was credible or a fabrication. The trial judge had earlier concluded that the
    complainants evidence was reliable. According to the Crown, the trial judge
    used the prior consistent statements to neutralize the allegation of recent
    fabrication, allowing him to find that the complainants evidence was credible
    and so conclude that the appellants guilt had been established beyond a
    reasonable doubt.

[19]

The difficulty with this analysis is that the trial judges reasons say
    otherwise. The trial judge specifically states that the complainants having
    revealed the abuse to several people  her friend, her boyfriend, her aunt, and
    her mother  reinforces my being satisfied beyond a reasonable doubt.

[20]

This statement cannot fairly be read as limited to the rehabilitative
    effect of the prior consistent statements on the complainants credibility  a proper
    use to which the statements could have been put. The trial judge does not refer
    to the complainants alleged motive to lie or the recent fabrication allegation
    in discussing the prior consistent statements. Instead, after having said that
    most cases turn on the evidence of the two witnesses involved in the conduct
    alleged, the trial judge refers to the statements as reinforcing his conclusion
    that the offences occurred. In other words, the trial judge considered that
    this case was unusual in that there was evidence beyond that of the complainant
    and the appellant on which he could base his decision. This statement shows
    that, in determining whether the offences were proven beyond a reasonable
    doubt, the trial judge relied on the complainants prior consistent statements
    for the truth of their contents, to corroborate the complainants evidence.
    That is an impermissible use of the statements, as
R. v. Dinardo
, 2008
    SCC 24, [2008] 1 S.C.R. 788 at para. 36 makes clear. See also
R. v. J.A.T.
,
2012 ONCA
    177, 290 O.A.C. 130, at paras. 97-100.

[21]

Accordingly, the appeal is allowed and a new trial is ordered on all
    counts.

G. Pardu J.A.

David Brown J.A.

Grant Huscroft J.A.


