



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. T.H., 2017 ONCA 485

DATE: 20170613

DOCKET: C60440

MacPherson, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.H.

Appellant

Delmar Doucette and Janelle Belton, for the appellant

David Finley, for the respondent

Heard: May 16, 2017

On appeal from the conviction entered by Justice Roland
    J. Haines of the Superior Court of Justice, sitting with a jury, on June 2,
    2014.

MacPherson J.A.:

A.

Introduction

[1]

The appellant was convicted of sexual assault following a jury trial.
    The complainant was the young daughter of the appellants sometime partner.

[2]

The child complainant gave two videotaped statements to police
    describing the appellants sexual contact with her. She also testified,
    including cross-examination, at the preliminary inquiry.

[3]

At trial, the complainant, who was then 11 years old, testified. As the
    examination-in-chief proceeded, the complainant became progressively
    unresponsive. She refused to be cross-examined.

[4]

Defence counsel brought an application seeking a stay pursuant to s. 24
    of the
Charter
on the basis that the inability to cross-examine the
    complainant infringed the appellants
Charter
s. 7 right to make a full
    answer and defence.

[5]

The trial judge refused to grant a stay, finding that the extraordinary
    remedy of a stay would not be appropriate in the circumstances. Instead, he
    concluded that the issue of the absence of cross-examination could be addressed
    appropriately in his jury instruction.

[6]

The principal issue on this appeal relates to the trial judges
    treatment of the issue of the absence of cross-examination of the complainant
    at the appellants trial. Did he err by not declaring a mistrial? Was his
    instruction to the jury on this issue sufficient?

[7]

A second issue on the appeal relates to the trial judges refusal to
    permit a proposed defence expert to testify about false subjective memory.

B.

Facts

(1)

The parties and events

[8]

Commencing in 2004, the appellant had a relationship and occasionally
    lived with the complainants mother, S.T. In 2007, when the complainant was approximately
    four years old, she informed her great-aunt that the appellant had put
    something inside her genital area. The great-aunt informed the Childrens Aid
    Society (CAS). The CAS ordered S.T. to take the complainant to a family
    doctor for a medical examination and to the CAS for an interview.

[9]

A family doctor performed the medical examination. He reported that
    while he did not find signs of sexual abuse, the complainant had informed him
    that the appellant had touched her genital area with something big.

[10]

At about the same time, a CAS worker and a police officer interviewed
    the complainant with her mother present. The complainant said nothing about
    sexual contact or conduct.

[11]

A year later, in 2008, S.T., the complainant and her siblings moved into
    the appellants house in London. In July 2009, the complainant and her siblings
    moved to Stratford after a domestic dispute between S.T. and the appellant.

[12]

Following the dispute, London CAS interviewed the complainant, then six
    years old, and her brother, eight years old. Both stated that the appellant had
    sexually abused them when they lived in his residence. On September 14, 2009,
    the complainant gave a videotaped statement to CAS personnel and the police.
    She described multiple acts of sexual abuse by the appellant.

[13]

On September 30, 2009, the appellant was charged with sexual assault and
    sexual interference and was released on a recognizance with the condition not
    to see the complainant or her family (the London charges). Contrary to the
    condition of his recognizance, the appellant began to regularly visit the
    complainants new residence in Stratford from Christmas 2010 onwards.

[14]

On March 11, 2011, the complainant, then eight years old, informed her
    school teacher that the appellant was sexually abusing her. The teacher called
    the CAS. In the afternoon of March 11 and again on March 14, the complainant
    was interviewed by the police and CAS personnel. The interviews were video recorded.
    In the interview, the complainant described, with gestures, that the appellant
    had touched her genitals and other parts of her body with his penis on a number
    of occasions.

[15]

The appellant was charged with sexual assault (the Stratford charges).

[16]

At the preliminary inquiry in July 2012, the complainant testified. She
    was examined and cross-examined. The appellant was committed to stand trial.

[17]

Prior to the commencement of the trial in relation to the Stratford
    charges, the appellant was convicted and sentenced in relation to the London
    charges.

(2)

The Trial

(a)

The complainants testimony

[18]

At trial, the complainant testified in examination-in-chief about the
    appellants sexual abuse in Stratford. She was 11 years old. She had testified
    at the London trial and at the preliminary inquiry relating to the Stratford
    charges.

[19]

In the course of her testimony, the complainant adopted the two
Criminal
    Code
s. 715.1 videotaped statements she had given in March 2011.

[20]

As the examination-in-chief progressed, the complainant became
    increasingly reticent and unresponsive.

[21]

Early in the cross-examination, the complainant refused to answer
    defence counsels questions. The court took a short break and the Crown counsel
    tried to persuade the complainant to participate in the cross-examination. She
    refused. The situation was summarized in a series of written questions from
    Crown counsel and written responses by the complainant:

Q.      Why are you not answering Qs?

A.       Because I dont want to!

Q.      You
    testified before, why are you not able to today?

A.       Its harder.

Q.      Do you want
    to answer Qs by writing down the answer?

A.       No!

Q.      Why is it
    harder? Is it the stuff you have to talk about?

A.       Yes.

[22]

When court resumed, the trial judge informed the jury: Members of the
    jury, I am now satisfied that [the complainant] will not respond to any more questions.

[23]

Defence counsel did not seek a mistrial. However, he did request, and
    the Crown did not oppose, that the complainants testimony at the preliminary
    inquiry be admitted as evidence pursuant to s. 715 of the
Criminal Code
, R.S.C., 1985, c. C-46
. The trial judge
    so ordered. The jury was provided with an audiotape and the corresponding
    transcript of this evidence.

[24]

At the conclusion of testimony, defence counsel sought a stay of the charge
    on the basis that his inability to cross-examine the complainant amounted to a
    denial of the accuseds right to make a full answer and defence as protected by
    s. 7 of the
Charter
.

[25]

The trial judge dismissed the application. In brief reasons, he said:

As I indicated this material was served on Friday, but as a
    result I had the opportunity to review it over the weekend. I am not convinced
    in the circumstances the extraordinary remedy of a stay would be appropriate
    and accordingly I will dismiss the motion for a stay.

[26]

However, the trial judge also determined that he should provide a
    specific instruction to the jury about the impact of the absence of
    cross-examination of the complainant. He delivered this instruction:

Cross-examination is the vehicle or method by which counsel are
    able to test the evidence of witnesses. It is fundamental to our trial process.
    When a witness refuses to respond in cross-examination, as [the complainant]
    did in this case, defense counsel is deprived of that means of challenging her
    testimony. Her evidence from the preliminary hearing where she was cross-examined,
    was admitted into evidence because she would not respond at the trial; so you
    do have that cross-examination to consider.

You may wish to consider whether a full cross-examination of
    her at trial would have been effective in diminishing her credibility and
    raising a reasonable doubt. In any event, you should approach the testimony of
    [the complainant] carefully, keeping these matters in mind. In doing so, you
    should consider all the evidence and identify evidence that you do accept from
    other witnesses who were cross-examined that supports or confirms the evidence
    of [the complainant]. You may wish, but are not required, to identify such
    corroborating evidence before relying on a particular aspect of [the
    complainants] evidence upon which she was not cross-examined.

(b)

The defences proposed expert witness

[27]

At trial, the defence sought to qualify Dr. Timothy Moore, the chair of the
    Department of Psychology at Glendon College, York University, as an expert in
    the areas of memory and childrens suggestibility. The defence intended to have
    Dr. Moore respond to a series of questions encapsulated in this question:

Is it possible for a child between the ages of 5 and 10 to have
    imagined abuse and incorporated imagined images of abuse into auto-biographical
    memory and then to develop a subjective feel of authenticity for these memories
    when they are a year or two older?

[28]

The trial judge ruled against the admission of Dr. Moores evidence. He
    said, in part:

It was my opinion upon hearing his evidence and the manner in
    which he advocated his views that the admission of his evidence, while being no
    more than helpful in alerting the jury to the vagaries of memory and the care
    with which they should approach the testimony of the child complainant, could
    potentially distract jurors from their task and distort the fact finding
    process.



In my view, the issues of credibility and reliability at play
    in this case require no specialized knowledge beyond the common knowledge and
    experience of jurors, properly instructed.

[29]

Accordingly, the trial judge found that the proposed expert evidence did
    not meet the necessity component of the test for admission: see
R. v. Mohan
,
    [1994] 2 S.C.R. 9.

C.

Issues

[30]

The issues on appeal are:

1.       Did the
    trial judge err in his treatment of the scenario that arose when the
    complainant refused to answer questions on her cross-examination?

2.       Did the
    trial judge err by ruling Dr. Moores proposed testimony inadmissible?

D.

Analysis

(1)

The cross-examination issue

[31]

The appellant makes two submissions on this issue.

[32]

First, the appellant contends that the trial judge should have declared
    a mistrial once it became clear that the complainant would not answer questions
    in cross-examination. The starting point for the appellants submission is
    recognition that an accuseds right to cross-examine witnesses is a central and
    very important component of an accuseds constitutionally protected right to
    make a full answer and defence. As expressed by Major and Fish JJ. in
R. v.
    Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 41, 43 and 44:

[T]he right of an accused to cross-examine prosecution
    witnesses without significant and unwarranted constraint is an essential
    component of the right to make a full answer and defence.



Commensurate with its importance, the right to cross-examine is
    now recognized as being protected by ss. 7 and 11(d) of the
Canadian
    Charter of Rights and Freedoms
. See
Osolin
,
supra
, at p.
    665.

The right of cross-examination must therefore be jealously
    protected and broadly construed.

[33]

The appellant contends that a proper application of
Lyttle
required the trial judge to declare a mistrial. The complainant was, by far,
    the crucial Crown witness at the trial. Once she could not be cross-examined
    because of her refusal to respond to defence counsels questions, the trial continued:
    this continuation was unfair to the accused.

[34]

For several reasons, I do not accept this submission

[35]

First, and importantly, defence counsel did not seek a mistrial when his
    cross-examination of the complainant was halted by her unresponsiveness.
    Instead, defence counsel sought and obtained the admission of the complainants
    testimony at the preliminary inquiry. The other Crown witnesses then testified
    and defence counsel cross-examined them. When it came time for the defence case
    to be presented, defence counsel tried, unsuccessfully, to call expert
    evidence. He was also given a lengthy break before informing the court that the
    accused would not testify. In short, defence counsel could have asked for a
    mistrial. He chose not to and proceeded with the trial.

[36]

Second, against the backdrop of the courts statement in
Lyttle,
at
para. 45, that the right of
    cross-examination itself is not absolute, there is a well-established test for
    determining whether a cross-examination of a witness impeded by
    unresponsiveness has such a serious impact on the accuseds ability to make a
    full answer and defence as to render the trial unfair.

[37]

The leading case is
R. v. Hart
, (1999), 135 C.C.C (3d) 377
    (N.S.C.A.), leave to appeal refused, [2000] S.C.C.A. No. 109, a sexual assault
    case involving a 12 year old complainant who was unresponsive during
    cross-examination. Based on the complainants unresponsiveness, the defence
    sought a judicial stay or a directed verdict of acquittal. The trial judge
    declined to grant this relief and this decision was upheld by the Court of
    Appeal.

[38]

After a careful review of relevant common law and
Charter
principles and Canadian, English and American authorities, Cromwell J.A.
    identified three factors that should be taken into account in determining
    whether the unresponsiveness of a child witness during cross examination denies
    an accused the right to make a full answer and defence and renders the trial
    unfair: (1) the reason for the unresponsiveness; (2) the impact of the
    unresponsiveness; and (3) possibilities of ameliorative action:
Hart,
at
    pp. 410-414; see also
R. v. Cameron
(2006), 208 C.C.C (3d) 481 (Ont.
    C.A.); and
R. v. Duong
, 2007 ONCA 68, 84 O.R. (3d) 515.

[39]

The first factor tells in favour of the appellant. The complainants
    unresponsiveness was caused by the subject matter of her evidence; it was not
    caused by any improper defence action.

[40]

The second factor favours the respondent. Obviously, the complainant was
    the main Crown witness. The absence of an opportunity to cross-examine her
    clearly removed a potentially important aspect of the defence case. On the
    other hand, the jury had seen the complainant testify for some time and then
    saw her become unresponsive. They also had the transcript and audiotape of the
    preliminary inquiry, where the complainant had testified, including
    cross-examination. They could evaluate the impact of her unresponsiveness on her
    credibility and reliability. Both of these aspects of her testimony were before
    the jury. Moreover, perhaps not surprisingly for an eight year old, her two
    statements to police which were admitted into evidence contained many
    inconsistencies.

[41]

The third factor, in my view, is crucial. In
Lyttle
, the court
    said, at para. 45:

Just as the right of cross-examination itself is not absolute,
    so too are its limitations. Trial judges enjoy, in this as in other aspects of
    the conduct of a trial, a broad discretion to ensure fairness and to see that
    justice is done  and seen to be done.

[42]

In the present case, the trial judge decided that the unresponsiveness
    of an 11 year old witness in a cross-examination relating to allegations about
    sexual abuse by her mothers boyfriend was not fatal to a fair trial.
    Accordingly, he did not declare a mistrial (he was not asked to). Nor did he grant
    the stay sought by the accused long after the complainant had finished her
    testimony and after many other witnesses had also testified without objection.

[43]

Instead, the trial judge sought to balance and accommodate the fair
    trial interests of the accused and the difficult situation of the young
    complainant. In doing so, he was, in my view, cognizant of something else
    Cromwell J.A. said in
Hart
, at pp. 399 and 400:

Over the last 10 years, there has been growing recognition that
    some rules of evidence and trial procedure do not adequately address the
    special needs of young witnesses, particularly in sexual abuse cases.



[F]lexibility and common sense must be applied when considering
    the consequences of a child witness becoming unresponsive during
    cross-examination. It seems to me to be wrong to base the analysis on whether
    the unresponsiveness is the fault of the witness, as some of the older
    authorities do. While it may be appropriate to consider whether the party
    calling the witness and the party cross-examining have done what is reasonably
    possible to mitigate the difficulties of testifying, the primary focus of the
    analysis should be the impact of the limitation on cross-examination on the
    ability of the jury to assess the evidence. This analysis should have due
    regard to the particular circumstances of the case, viewed realistically and with
    common sense by standards appropriate to a witness of the age and
    sophistication of the child in question. In short, the assessment must be made
    with the flexibility and common sense appropriate to child evidence generally,
    not according to stereotypes or rigid rules.

[44]

In the particular circumstances of this case, the trial judge was
    correct to conclude that the complainants inability to participate in
    cross-examination was consistent with trauma and needed to be accommodated in a
    manner that struck a balance between the accuseds right to make a full answer
    and defence and the societal need to protect the most vulnerable of
    complainants, children. On my reading of the record, the complainant was in no
    position to continue with cross-examination and it was not clear that she would
    have been able to do so in the future. In such a circumstance, declaring a
    mistrial would not have been appropriate, even if defence counsel had requested
    it.

[45]

In striking the appropriate balance, the trial judge accepted the
    defence request that the complainants testimony at the preliminary inquiry be
    admitted as evidence pursuant to s. 715 of the
Criminal Code
. The
    complainant had been cross-examined at the preliminary inquiry and defence
    counsel was able to make submissions about that testimony as well as the other
    evidence in his closing address to the jury. In addition, the trial judge
    specifically cautioned the jury about the absence of a cross-examination of the
    complainant. In my view, taking these components together, the trial judge, per
Lyttle
, exercised his broad discretion to ensure trial fairness in an
    appropriate fashion.

[46]

The appellants second, and alternative, submission on this issue is
    that the trial judges specific instruction, the caution, did not go far
    enough. Defence counsel at trial sought a modified
Vetrovec
instruction in which the trial judge would tell the jury that it would be
    dangerous to convict the appellant on the basis of the complainants evidence
    without confirmatory evidence. The appellant renews this position on this
    appeal.

[47]

I am not persuaded by this submission. In my view, the trial judge
    provided a jury instruction that was explicitly directed at the complainants
    evidence and arose from her refusal to be responsive to questions during
    cross-examination. The overall tenor of the instruction was cautionary, stating
    specifically that the jury should approach the testimony of [the complainant]
    carefully and look for confirmatory evidence. I see nothing wrong with the
    specific instruction he gave flowing from the absence of cross-examination of
    the complainant.

(2)

The expert evidence issue

[48]

The appellant submits that the trial judge erred by refusing to admit
    the evidence of the defences expert, Dr. Timothy Moore. He would have
    testified about whether imagined images of abuse could be incorporated into
    autobiographical memory that a child can then subjectively believe. The
    complainant stated in one of the March 2011 interviews that the appellant
    comes into my room in the middle of the night I dont know what he does
    because Im sleeping but all I know is he comes in my room. As well, at the
    preliminary inquiry, the complainant testified that she had had dreams that the
    appellant came into her bedroom and did bad things to her, although she claimed
    that she could tell the difference between when she was dreaming and when she was
    awake. According to the appellant, Dr. Moores evidence was thus relevant to
    whether the complainant could have mistaken an experience of abuse with dreams
    that had been embedded as a false subjective memory.

[49]

The trial judge ruled that Dr. Moores evidence was inadmissible because
    it did not meet the necessity criterion and because its probative value was
    outweighed by its potential distracting effect.

[50]

The appellant contends that the trial judge erred on both counts of his
    reasoning.

[51]

I do not accept this submission. This court has consistently held that a
    trial judges decision to admit or exclude expert evidence is entitled to
    deference on appellate review, unless there is an error in principle or the
    decision is unreasonable: see
R. v. McManus
, 2017 ONCA 188, at para.
    68. I see no error in the trial judges balancing of the relevant factors in
    his ruling and the ultimate decision is far removed from being unreasonable.

[52]

This court, per Rosenberg J.A., has upheld a trial judges decision not
    to admit Dr. Moores expert testimony in a trial with facts similar to this one:
    see
R. v. C.
(
T.
)
(2004), 72 O.R. (3d) 623. I see no
    basis for a different decision on this appeal

E.

Dispostion

[53]

I would dismiss the appeal.

Released: JCM  JUN 13 2017

J.C. MacPherson
    J.A.

I agree. R.A. Blair
    J.A.

I agree. Gloria
    Epstein J.A.


