



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. W.C.H., 2019 ONCA 910

DATE: 20191120

DOCKET: C63687

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.C.H.

Appellant

Joseph Heller, for the appellant

Joanne Stuart, for the respondent

Heard: November 12, 2019

On appeal from the
    conviction entered by Justice John A. Desotti of the Superior Court of Justice
    on December 11, 2015, with reasons reported at 2015 ONSC 7729.

REASONS FOR DECISION

[1]

The appellant was charged with sexual offences against the complainant,
    A.K., his then spouse, and against his children. He was acquitted of the
    offences against his children but convicted of a single incident of sexual
    assault of the complainant. He received a conditional sentence of imprisonment
    of 21 months.

[2]

He appeals against conviction only. For the reasons that follow, the
    appeal is dismissed.

[3]

The appellant was tried by judge alone, more than 16 and one half years
    after the offence occurred. The appellant did not testify at trial.

[4]

The trial judge accepted the complainants evidence that: the appellant
    forced her to have vaginal intercourse while she was recovering from a
    hysterectomy; the intercourse was very painful; after, she experienced bleeding
    and, later that day, noticed feces coming out of her vagina; and she required
    multiple surgeries to repair the resultant hole between her vagina and her
    bowels and to repair scar tissue in her vagina.

[5]

After the trial judge found the appellant guilty of sexually assaulting
    the complainant, and before sentencing, the appellant filed an application
    seeking an order re-opening the trial and a mistrial based on fresh evidence.
    The proposed fresh evidence consisted of Day Timer entries the appellant found
    before his preliminary inquiry. They appear to have been authored by the
    complainant. They suggest that the hysterectomy may have occurred about ten
    months later than she testified it had occurred, and that she may have been
    wrong about how quickly following the hysterectomy the assault occurred. The
    timeframe in the indictment encompasses both dates.

[6]

The trial judge dismissed the appellants application. While he found
    that the proposed fresh evidence could have been available at trial had the
    appellant exercised due diligence, he did not rely on this in dismissing the
    application. The trial judge also found that the proposed fresh evidence was
    relevant and credible. His decision turned on his assessment of whether, if
    believed, and when taken with the other evidence at trial, the proposed fresh
    evidence could reasonably be expected to have affected the result. He found
    that the impact of the proposed fresh evidence was inconsequential and not a
    reason to question the finding of the accuseds guilt beyond a reasonable
    doubt. He further concluded that the

evidence of the change of the date of the hysterectomy would
    not have impacted negatively on the credibility of the complainant, [A.K.], as
    she described her sexual assault of the accused, [W.C.H.], after her
    hysterectomy and the many problems occasioned thereafter because of the sexual
    assault.

[7]

The appellant argues that, in assessing the cogency of the proposed
    fresh evidence, the trial judge erred in principle by only considering whether
    the proposed fresh evidence impacted negatively on the credibility of the
    complainant and failing to consider whether the proposed fresh evidence
    impacted negatively on the
reliability
of the
    complainants evidence. He submits that the proposed fresh evidence impacts
    negatively on the reliability of the complainants evidence, that it could have
    reasonably affected the verdict, and that a new trial must be ordered.

[8]

The appellant concedes that the trial judges specific determination
    that the proposed fresh evidence would not have impacted negatively on the
    credibility of the complainant is entitled to deference. He does not challenge
    the reasonableness of that finding.

[9]

We are not persuaded that the trial judge erred in principle in his assessment
    of the cogency of the proposed fresh evidence. He correctly considered whether
    the proposed fresh evidence, if believed, and when taken with the other
    evidence at trial, could reasonably be expected to have affected his verdict.
    He concluded that it would not.

[10]

The trial judge was alive to the issue of the reliability of the
    evidence of all the complainants about events that occurred many years before.
    Indeed, he acquitted the appellant of the counts with respect to his children
    because of his concerns with the reliability of their testimony, even though he
    had no concerns with their credibility.

[11]

In contrast, the trial judge found that the complainant was a credible
    and reliable witness. As noted above, in dismissing the appellants
    application, the trial judge found that the impact of the proposed fresh
    evidence was inconsequential and not a reason to question the finding of the
    accuseds guilt beyond a reasonable doubt. The fact that the trial judge did
    not specifically mention the impact of the proposed fresh evidence on the
    reliability of the complainants core assertion that the appellant assaulted
    her while she was recovering from her hysterectomy does not take away from that
    finding.

[12]

Moreover, the trial judge reasonably concluded that the proposed fresh
    evidence was not material to the ultimate finding of guilt. The cogency inquiry
    must be done in the context of the totality of the evidence led at trial and
    having regard to the positions advanced at trial:
R. v. M.G.T.
, 2017
    ONCA 736, 357 C.C.C. (3d) 109, at para. 103. In his very brief
    cross-examination of the complainant, the appellant did not challenge the
    complainants testimony that he had intercourse with her following her
    hysterectomy, before the doctor had advised it was safe to do so. The thrust of
    the cross-examination was to attempt to cast doubt that the post-hysterectomy
    intercourse was non-consensual:

Q. And this wouldve been after youd had hundreds if not
    thousands of sexual encounters with [W.C.H.] and bore him three children. Is
    that correct?

A: Yeah.

[13]

The specific date of the forced intercourse was never an issue at trial.
    The complainant was not asked a single question in cross-examination about the
    timing of the forced intercourse. In this case, no part of the defence on this
    count turned on when the forced intercourse occurred.

[14]

Further, there is nothing in the proposed fresh evidence that suggests
    that the forced intercourse did not occur while the complainant was recovering
    from her hysterectomy. In fact, as the trial judge noted in ruling on the
    application, the entries in the Day Timer are consistent with her evidence that
    she experienced complications in recovering from her hysterectomy. This lends
    some support to her claim that the forced intercourse caused the injuries she
    described.

[15]

The trial judges decision involved the exercise of judicial discretion
    and is entitled to significant deference on appeal:
M.G.T.
, at para.
    55. We are not persuaded that there is any basis to interfere with his decision
    dismissing the appellants application to permit a post-verdict re-opening of
    the defence case.

[16]

Accordingly, the appeal is dismissed.

Alexandra Hoy
    A.C.J.O.

Doherty J.A.

B. Zarnett J.A.


