



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(1), (2), or (3)
    of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.   
    (1)
Any
    proceedings against an accused shall be held in open court, but the presiding
    judge or justice may order the exclusion of all or any members of the public
    from the court room for all or part of the proceedings if the judge or justice
    is of the opinion that such an order is in the interest of public morals, the
    maintenance of order or the proper administration of justice or is necessary to
    prevent injury to international relations or national defence or national security.

(2)
For the purpose
    of subsection (1), the proper administration of justice includes ensuring
    that.

(a)     the
    interests of the witnesses under the age of eighteen years   are safeguarded in
    all proceedings; and

(b)     justice system participants who are involved in
    the proceedings are protected.

(3)
If an accused is charged with an offence under section
    151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1,
    171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused
    applies for an order under subsection (1), the judge or justice shall, if no
    such order is made, state, reference to the circumstances of the case, the
    reason for not making an order.  R.S., c. C-34, s. 442; 174-75-76, c. 93, s.
    44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd
    Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7;
    1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16,
    34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss.
    4 and 8(3)(a).




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. T.R.S., 2012
    ONCA 105

DATE:  20120214

DOCKET: C51181

Doherty, Laskin JJ.A. and Brown R.S.J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Robert S.

Appellant

Lisa Loader, for the appellant

Alex Hrybinsky, for the respondent

Heard:  February 13, 2012

On appeal from the convictions entered on October 4, 2000
    by Justice Joseph M.W. Donohue of the Superior Court of Justice, sitting with a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

We are satisfied that the fresh evidence proffered on appeal meets the
    cogency requirements set out in
Palmer
(criteria 2, 3, and 4).  The
    evidence, a death certificate referable to the date of the appellants younger
    brothers death, is determinative on that factual issue.

[2]

The Crowns case against the appellant was far from strong as evinced by
    the acquittal of the appellant on most of the charges.  The fresh evidence impacts
    on the timing of one of the two events (the younger brothers death) on which
    the main complainant based her chronology of the relevant events.  The fresh
    evidence is inconsistent by a year with the complainants testimony as to the
    date of her younger brothers death.  Depending on how the complainant would
    react if confronted by the death certificate, a trier of fact could well
    conclude that on the complainants evidence the sexual assaults underlying the
    two convictions may have occurred while the appellant was still a juvenile and
    outside of the jurisdiction of the criminal courts.

[3]

The evidence was available at trial and clearly, with the benefit of
    hindsight, should have been led.  It is not suggested, however, that the
    failure to lead the evidence reflects any tactical decision made at trial.  It
    is probably best seen as an oversight explained in part by the nature of the
    defence advanced at trial.  The appellant adamantly denied that any of the
    sexual activity alleged against him occurred.  The defence consisted of an all
    out attack on the credibility of the complainants rather than a challenge to
    the timing of any specific event.  That attack was largely successful.

[4]

Despite the failure to lead the evidence at trial, we are satisfied that
    the interests of justice require that the evidence be admitted on appeal.

[5]

We stress, however, that the fresh evidence does not cast any doubt on
    whether the appellant committed the sexual assaults for which he was
    convicted.  The fresh evidence does, however, raise a very real question as to
    whether he committed those assaults as an adult or a juvenile.

[6]

A reasonable jury, considering the entirety of the record, could still
    conclude that the assaults occurred after the appellant turned 16.  The Crown
    is, therefore, entitled to a new trial.  The convictions are quashed and a new
    trial is ordered.


