



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada, 1970,
    as it read immediately before January 1, 1988; or

(b)       two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order;
    and

(b)  on
    application made by the complainant, the prosecutor or any such witness, 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).

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. C.T., 2013 ONCA 350

DATE: 20130529

DOCKET: C55610

MacPherson, Blair and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

C.T.

Respondent

Nadia Thomas, for the appellant

Bernadette Saad, for the respondent

Heard: March 25, 2013

On appeal from the acquittal entered by Justice Robert
    Graydon of the Ontario Court of Justice on May 16, 2012.

Juriansz J.A.

[1]

The Crown appeals from the acquittal of the respondent on charges of
    invitation to sexual touching, sexual assault and sexual interference relating
    to the respondent's alleged actions with his four-year-old stepdaughter. The
    primary basis of the Crown's appeal is that the trial judge erred by excluding
    a portion of the complainant's video-recorded police interview.

[2]

The complainant initially disclosed to her grandmother, who was
    babysitting her, that the respondent played a secret game with her. The
    secret game was a naked game that only a little girl and a man could play
    together. The complainant said that she was not supposed to talk about it. The
    complainant agreed to act out how the game was played and did so using a toy
    hammer, toy pot and maraca. When the complainant overheard her grandmother
    reporting this event to her mother, she became hysterical, crying loudly and
    saying were not supposed to talk. The respondent, who arrived a few minutes
    later, immediately and emphatically denied the allegations.

[3]

The police conducted two video-recorded interviews of the child. The
    first was conducted two days after the complainants disclosure, when the
    grandmother took the complainant to the police station. The complainant was interviewed
    alone in a room with a police officer who was a stranger to her. The
    complainant indicated that she played games with the respondent but that she
    did not know what she did with the respondent when her mother was away. The
    interview was stopped because the complainant began to cry and wanted to go
    back to her grandmother.

[4]

The following day the police conducted a second video-recorded interview
    in a different setting. This time the complainant was allowed to sit on her
    grandmother's lap and a Children's Aid Society (CAS) worker was present. Initially
    the child said she was not sure when asked whether she had touched the
    respondents private parts and whether he had touched her private parts.
    Following these questions she stated: Whatever you ask me you still have to
    make it stop. [] As long as what I say you still have to make it stop.

[5]

After the police interviewer explained that private parts mean back-bum
    and front-bum, the complainant demonstrated, using stuffed animals, how
    mutual oral sex occurred with the respondent. She indicated by nodding yes
    that the respondents tongue had touched her front-bum. In words, she confirmed
    that the respondents tongue was used. She also said:

§

She played the secret game lots more than one time at her
    house.  They played the game on Mommy and [the respondent]s bed while her
    mother was out delivering pizza.  She and the respondent were laying down
    during the secret game.

§

She nodded yes that the respondent asked her not to tell about
    the game.  She also said that she couldnt tell because she might get in
    trouble.

§

When asked whether the respondent touched her front-bum with
    other parts of his body besides his tongue, she said: He touches the same part
    as I touch him.

§

Other than touching her front-bum with his tongue and his
    hands, the respondent does not touch the rest of her during the game.

§

Her clothes and the respondents clothes are off when they play
    the scary game.

§

She said He does the same thing as I do regarding tongue going
    on front-bum.

[6]

Later in the interview, the complainant, on her own initiative, asked
    the interviewers whether they had ever watched the movie
Ghostbusters
.
    Without prompting, she went on to recount how the respondent, like the
    character Slimer in that movie, makes slime like Slimer and the slime isnt
    green, its white. She explained that the slime doesnt come right away and
    demonstrated on a stuffed animal that you have to rub it to make it slime and
    that it takes a few minutes. This was the section of the recorded statement that
    the trial judge excluded.

[7]

The trial began on March 13, 2012, when the complainant was five years
    and three months old. At trial, video recordings of both interviews were played
    as the complainants evidence-in-chief. The Crown asked her only a few
    questions. She testified that she did not tell the police officer about the
    scary game in the first interview because she didnt have the police bear at
    that time. She agreed that having the police bear made it easier for her to
    talk about it. She also testified that what she had said about the scary game
    in the second interview was the truth. She stated that she played the scary
    game with the respondent in the bedroom.

[8]

The cross-examination of the complainant took place after an adjournment
    of one week. More than 100 times in cross-examination she said she did not
    remember or agreed with suggestions she did not remember. As well, she responded
    to other questions of defence counsel by simply stating youre so silly, or
    Im laughing at you, or youre funny.

[9]

Defence counsel asked the complainant some general questions about the
    movie
Ghostbusters
but did not approach her reference to Slimer and
    her Slimer ejaculation allegation. He asked if she had seen the movie and she
    responded that she had. She agreed with him that the movie had ghosts in it as
    well as the big marshmallow man and that she had watched it several times at
    home with the respondent and her mother. Defence counsel, however, did not ask
    any questions about what the child had said in the recorded statement about how
    the respondent was like the character Slimer.

[10]

After
    the cross-examination ended, the trial judge permitted a liberal re-examination
    by Crown counsel and then allowed defence counsel an additional opportunity to
    cross-examine the child. Defence counsel asked her about the props that had
    been present at the police station and that had been used to demonstrate the
    respondents actions. Defence counsel suggested to the child that she was
    telling the truth when she had previously answered many of his questions I
    dont remember. She agreed and also agreed that this was because sometimes
    what she was being asked about was from a while ago. However, in the further
    cross-examination, defence counsel again did not take the initiative to ask the
    child about the
Ghostbusters
movie and her Slimer allegation.

[11]

When
    defence counsel indicated to the court that he had no further questions, the
    trial judge suggested to him that he may want to ask her directly what her
    knowledge is about when she raised the subject matter of
Ghostbusters
and what flowed from that. Defence counsel proceeded to ask some general
    questions about the movie and the Slimer character and the complainant
    responded to them. Then defence counsel asked whether she remembered telling
    the CAS worker and the police officer something about [the respondent] and
    Slimer and she indicated that she did not. She said she did not remember
    telling them about something that happened with her and the respondent that
    reminded her of that movie. Defence counsel then asked her if today she
    remembered anything that happened between her and the respondent that reminded
    her of the movie
Ghostbusters
, and she answered no.

[12]

The
    respondent testified and denied committing the offences. He testified that he
    did play a scary game with the complainant once or twice a week. He explained
    that the scary game was like hide and seek but hide and scare. In the game
    the child would look for him and he would jump out and say boo. He testified
    that the complainant hated having her hair washed out and that when he bathed
    her he would refer to the shampoo as white slime. The complainant could
    pretend just like Slimer from
Ghostbusters
that he had slimed her head
    when he squeezed the shampoo bottle. The respondent also said that, when
    putting the child to bed, he would give her a body slam on to the mattress.

The Trial Judges Ruling

[13]

The
    trial judge found that the childs unresponsiveness had, in effect, denied the
    respondent the right to cross-examine her. He stated that he was invested with
    a gatekeeping function and was constitutionally obligated to ensure an
    accused receives a fair trial.  He said that though the child had been
    physically available for cross-examination, cross-examination proved to be a
    hollow meaningless right. He pointed out that, in response to questions from
    defence counsel, she had testified that she did not remember more than 100
    times and had answered other questions by simply stating youre silly, or
    Im laughing at you, or youre funny.

[14]

The
    trial judge noted that after defence counsel was requested by this Court to
    direct some of his questions of [the complainant] to the subject matter of the
    movie Ghostbusters and what followed from that, the complainant easily
    answered questions of defence counsel about the contents of the
Ghostbusters
movie but would not remember or could not remember:

·

telling the CAS worker and the police officer something about [the
    respondent] and Slimer;

·

telling the CAS worker and the police officer that something
    happened with her and [the respondent] that reminded her of that movie; and

·

anything that happened between her and [the respondent] that
    reminded her of the movie Ghostbusters.

[15]

Thereupon
    the trial judge found that the respondents
Charter
rights under
    sections 7 and 11(d) had been infringed. To ensure the trial was fair he ruled
    that all of the questions and answers about
Ghostbusters
and the Slimer
    references in the second video-recorded interview were inadmissible, together
    with any reference by any witness at trial to the subject, and the part of the
    respondents testimony in which he attempted to explain the childs Slimer
    ejaculation allegation.

Analysis

[16]

The
    trial judges ruling cannot stand for several reasons.

[17]

First,
    the trial judge erred by making the order without indicating he was considering
    making it and giving the Crown an opportunity to address the issue. There was
    no application by the defence to exclude the testimony.  In fact, after the
    child had been excused as a witness, Crown counsel had indicated that if the
    defence intended to argue that there had been no opportunity to meaningfully
    cross-examine he had submissions to make in closing argument. However, at no
    time did defence counsel suggest that his clients section 7 and 11(d)
Charte
r
    rights had been violated. The trial judge should not have made the order
    without hearing from the parties. The duty of a trial judge is to ensure the
    trial is fair to all parties.

[18]

Though
    this is a sufficient basis to set aside the order, I also accept the Crowns
    submissions that the order was not appropriate in the circumstances of this
    case.

[19]

The
    childs unresponsiveness at trial about the Slimer ejaculation allegation,
    which seems to have been the main basis of the ruling, had no connection to the
    defences opportunity to conduct the cross-examination it wished. The defence
    closed its cross-examination twice without touching on the childs Slimer
    ejaculation allegation and eventually explored the subject only when prompted
    by the trial judge. It is apparent that the defence had made a tactical
    decision to stay away from the childs Slimer ejaculation allegation to avoid
    the significant risk that the child would affirm it. The defences strategy was
    to counter the allegation with the respondents testimony about white slime
    being squeezed from the shampoo bottle when the respondent would wash the
    childs hair.

[20]

I
    have difficulty in understanding how the childs unresponsiveness on the
    subject worked any unfairness to the defence when it was the trial judge and
    not the defence who wanted the child to be questioned at trial about the
    allegation. In fact, had the additional questions posed at the request of the
    trial judge elicited testimony devastating to the defence, as could well have
    happened, the defence might have complained about the trial judges
    intervention.

[21]

In
    any event, the consideration of whether to exclude a portion of a recorded interview
    must take into account that the primary goal of s. 715.1 is to overcome the
    effects of the passage of time on the recollection of young children. Cory J. explained
    this in
R. v. F.(C.C.)
,  [1997] 3 S.C.R. 1183, at para. 21:

It can thus be seen that the primary goal of the section is to
    create a record of what is probably the best recollection of the event that
    will be of inestimable assistance in ascertaining the truth. The video record
    may indeed be the only means of presenting a child's evidence. For example, a
    child assaulted at the age of three or four years may have very little real
    recollection of the events a year or two later when the child is attempting to
    testify at trial.

[22]

At
    para. 23, Cory J. noted that:

Numerous Canadian academic writers have noted and stressed the
    goals of s. 715.1. For instance, Professor Bala stated, in Nicholas Bala and
    Hilary McCormack, "Accommodating the Criminal Process to Child Witnesses:
    L. (D.O.) and Levogiannis" (1994), 25 C.R. (4th) 341, at p. 343:

One of the main purposes of this provision is to
    ensure that the courts have access to the best description possible of the
    events, as a child is more likely to have an accurate and complete memory of
    the events when the videotape is made, than several months later at the time of
    trial. Children are also more likely to fully remember and relate often painful
    memories in a relatively relaxed interview than in the strange, stressful, and
    formal court environment.

[23]

An
    order excluding a portion of a video recording admitted under s. 715.1 because
    of a childs genuine inability to remember seems to run counter to the primary
    purpose of the provision.

[24]

Cory
    J. also noted, at para. 22, that a further aim of s. 715.1 is to obtain the
    childs story in a setting that is less overwhelming than a courtroom:

The important subsidiary aim of the section is to prevent or
    reduce materially the likelihood of inflicting further injury upon a child as a
    result of participating in court proceedings. This will be accomplished by reducing
    the number of interviews that the child must undergo and thereby diminish the
    stress occasioned a child by repeated questioning on a painful incident.
    Further, the videotaping will take place in surroundings that are less
    overwhelming for a child than the courtroom.

[25]

In
    this case the trial judge did not arrive at a determination of the reasons for
    the childs unresponsiveness. He simply said that the child would not remember
    or could not remember. There was evidence that, if accepted, would indicate the
    childs unresponsiveness was due to a genuine inability to remember.  The child
    agreed with defence counsel that she answered his questions by saying I dont
    remember because she did not in fact remember.

[26]

The
    record also discloses a basis that could support the inference that the
    courtroom setting and trial process played a role in the childs
    unresponsiveness. In cross-examination the child had explained that she did not
    disclose anything in the first police interview because she was too scared
    that day and that the next day she wasnt so scared because her grandmother
    was with her. As well, in the midst of her cross-examination, the child
    indicated she was tired and needed a break. While the trial judge had accommodated
    her with regular breaks during the in-chief viewing of the lengthy video recordings,
    there was only one short adjournment during the cross-examination. The
    cross-examination was not interrupted the second time the child indicated she
    needed a break.

[27]

The
    trial judge should not have made the ruling without resolving his concern that
    the child would not remember. Absent a finding that the child was
    deliberately evasive the record discloses no basis for excluding the portion of
    the video.

[28]

The
    trial judges concern the child would not rather than could not remember may
    have been affected by a misapprehension of the childs age and the time that elapsed
    between the events and trial. The reasons for judgment say, at one point, that [the
    complainant] was five-and-a-half years old during the time period covered by
    the information, at the time she was interviewed by the police, and six years
    of age at trial. In fact the she was four-and-a-half years old during the
    events leading to the charges, and five years and three months old at trial.

[29]

Finally,
    I observe that the defence was able to conduct a cross-examination that was not
    meaningless. In addition to the matters mentioned above she:

§

Acknowledged that it was true that the respondent scared her a lot
    while she lived with him because he hid everywhere.  She also said that this
    was not part of a game that he was playing with her.

§

She explained that she did not remember telling her grandmother
    about the secret game because it was last summer.

§

While she did not remember where she played the secret game or
    what they did, she said she did remember playing the secret game with the
    respondent. The child said that she did not remember her grandmother asking
    about the secret game, nor did she remember telling her grandmother about the
    secret game.  She clarified, however, that this was because she did not tell
    her grandmother about the secret game.  Instead, she showed her grandmother
    the secret game and she did remember showing her.

[30]

It
    is far from apparent to me that the respondent was completely denied the right
    of cross-examination.

Conclusion

[31]

For
    these reasons, I would conclude that the trial judge erred by excluding a
    portion of the complainants recorded statement. I would allow the appeal and
    remit the matter for a new trial.

R.G. Juriansz J.A.

I agree J.C.
    MacPherson J.A.

I agree R.A. Blair
    J.A.

Released: May 29, 2013


