



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    the complainant or a witness shall not be published in any document or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. T.J., 2014 ONCA 321

DATE: 20140425

DOCKET: C54747

Laskin, Rosenberg & Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.J.

Appellant

Michael Dineen, for the appellant

Katie Doherty, for the respondent

Heard: October 29, 2013

On appeal from the conviction entered on November 22,
    2010 by Justice Wendy L. MacPherson of the Superior Court of Justice, sitting
    without a jury.

Laskin J.A.:

A.

Overview

[1]

The appellant was convicted of sexual abuse of M.C., the daughter of his
    former common law spouse, S.C.  M.C. alleged that she had a sexual relationship
    with the appellant for several years, beginning when she was ten or eleven and
    asked to touch the appellants penis, and ending when she was 14 and made a
    complaint to the police.  The appellant denied that he had engaged in any
    sexual activity with M.C.

[2]

The case thus turned on the credibility of the complainants allegations
    and the appellants denial.  The trial judge rejected the appellants evidence
    and accepted the complainants evidence.  She convicted the appellant of all
    four counts on the indictment
[1]
and sentenced him to four years imprisonment.

[3]

The appellants appeal against his conviction focuses on the trial
    judges reasons for rejecting his evidence.  The trial judge gave several
    reasons.  The appellant challenges two of them:

1. The appellant submits that the trial judge erred
    by finding that he spoke to no one and took no steps in response to the
    complainants request to touch his penis.  He argues that this finding is
    unfair and unsupported by the record because he was never asked what he did
    after the incident.

2. The appellant submits that the trial judge erred
    by relying on an out-of-court statement by S.C.  Why dont you just fuck
    Dad?  as evidence that she was aware of an inappropriate relationship between
    her daughter and the appellant.  The appellant argues that the trial judges
    use of the statement in this way was unjustified because S.C. was never called
    to testify, though she was available to do so.

[4]

I agree with the appellants submissions.  Although the trial judges
    other reasons for rejecting the appellants evidence are supportable, they
    cannot be disentangled from her flawed reasons.  Accordingly I would allow the
    appeal, set aside the appellants convictions and order a new trial.

B.

Background

(a)

The Parties

[5]

At the time of trial in May 2010, the complainant was 16 and the
    appellant was 44.

[6]

When the complainant was seven or eight, she was taken from her mother
    and placed in foster care.  Her mother visited her weekly.  When the appellant
    began a relationship with S.C., he came to these weekly visits.

[7]

In 2004, when the complainant was ten, she left foster care and went to
    live with her mother and the appellant at his house.  She testified that she
    had a close relationship with the appellant: she saw him as a father figure. 
    At the time, the appellant also had joint custody of his two teenaged sons.

(b)

The Complainant Asks to
    Touch the Appellants Penis

[8]

At bedtime, the appellant routinely went to the complainants room to
    give her a hug and kiss and to say goodnight to her.  One evening when she was
    ten or eleven, the appellant came to say goodnight, and she asked to see and
    touch his penis.  The complainant and the appellant gave different accounts of
    what then occurred.

[9]

The complainant testified that the appellant removed his pants and
    allowed her to touch his penis.  He did not appear shocked by her request.  In
    contrast, the appellant testified that he was shocked and that he told the
    complainant that she should not ask that again.  However, he did not interpret
    the incident as a sexual advance.  The appellant was not asked whether he spoke
    about the incident to the complainants mother or to anyone else.

(c)

The Complainants Allegations of a Sexual Relationship, and the        Appellants
    Denial

[10]

The
    complainant testified that after this incident, she and the appellant became
    physically intimate.  They began by cuddling when he came to say goodnight,
    they progressed to taking each others clothes off, and eventually they had
    intercourse.  The complainant said that they had sex once or twice a week.  The
    appellant either used a condom or pulled out before ejaculating.  The
    complainant also said that the appellant never forced her to do anything and
    that she liked what they did, though she knew it was wrong.

[11]

The
    appellant testified that he never engaged in sexual activity with the
    complainant.  The defences position was that the complainant fabricated her
    allegations following the appellants acrimonious separation from her mother.

(d)

S.C.s Out-of-Court Statement

[12]

One
    summer day in 2007, the appellant was sitting by his backyard pool while the
    complainant and his two sons were swimming.  He had a badly sunburned back. 
    The children got out of the pool and started a contest to see who could peel
    the biggest piece of skin off his back.  While the contest was taking place, S.C.
    arrived home.  When she saw the complainant peeling the appellants skin she
    said: Why dont you just fuck Dad and get it over with?

[13]

The
    complainant ignored her mothers comment.  However, the appellant followed S.C.
    into the house and confronted her about it.  According to the appellant, she
    would not answer.  Neither the Crown nor the defence called S.C. as a witness
    at the trial.

(e)

The Appellant and S.C. Separate; the Complainant Comes to Stay with the Appellant

[14]

In
    October 2007, the relationship between the appellant and S.C. deteriorated, and
    they soon separated.  They argued about money.  When the appellant claimed that
    S.C. had taken $80,000 from their joint bank account without his permission,
    she left abruptly and took the complainant with her.

[15]

For
    eight months, from October 2007 to May 2008, the complainant and the appellant
    had no contact with each other.  Then the complainant called him.  She had been
    fighting with her mother, and asked to stay with him.  He said yes, and she
    stayed overnight.  S.C. called the police that evening and they went to the
    appellants house around 11:00 p.m.  The complainant said that she was fine,
    and the police took no action.  In her trial testimony, the complainant said
    that she had no sexual contact with the appellant that night.

[16]

However,
    the complainant continued to stay with the appellant, and testified that their
    sexual relationship resumed a few nights later.  Again, the appellant denied
    any sexual contact with the complainant.

(f)

May 20, 2008: The
    Appellant is Arrested

[17]

In
    the early morning hours on May 20, 2008, in response to another complaint from
    S.C., two police officers went to the appellants house.  They testified that the
    house was dark, but an upstairs light illuminated the hallway.  After the
    officers knocked on the door, they saw a man coming from the left side of the
    house  where the master bedroom was located  walk into the bathroom, and
    emerge with a housecoat on.  They also saw a smaller person run from the left
    side of the house to the right side, where another bedroom was located.

[18]

The
    appellant answered the door.  The police asked whether M.C. was there; he
    answered, let me go see if she is awake.  The officers said that they knew
    she was awake and went upstairs.  They testified that the complainant was in
    the other bedroom but that from the master bedrooms appearance, it appeared
    that two people had been sleeping in it.  The police arrested the appellant for
    sexual exploitation.

[19]

The
    appellant and the complainant also testified about what occurred that evening. 
    The appellant said that the complainant came into his room to wake him up
    because someone was at the door.  He looked out the bedroom window and saw two
    police cruisers.  He put his housecoat on, told the complainant to go back to
    bed, and went downstairs to answer the door.

[20]

The
    officers barged past the appellant and demanded to know where M.C. was.  They
    went upstairs and the appellant followed them.  They wanted to know what a 14
    year-old girl was doing in his room at 2:30 a.m.  He explained that she had
    come in to wake him up.  The complainant also tried to explain this but was
    told by one of the officers to keep quiet and get dressed.  The appellant was
    then arrested.

[21]

The
    complainant said that she was asleep in the appellants bed, but was awoken around
    2:30 a.m. by the sound of the doorbell.  She looked outside and saw two police
    cruisers.  The appellant told her to go to her room and act like she was sleeping.

[22]

At
    first, the complainant denied any sexual relationship with the appellant. 
    Eventually, however, she told the police that she had been in a sexual
    relationship with the appellant from the time she was ten or eleven years old.

C.

analysis

[23]

The
    trial judge gave lengthy oral reasons, in which she described the evidence in
    detail.  Toward the end of her reasons, she assessed the credibility of the
    appellants denial.  She gave four reasons for rejecting his evidence that he
    never engaged in any sexual activity with the complainant: first, he spoke to
    no one and did nothing after the incident in which the complainant asked to
    touch his penis; second, his testimony concerning his relationship with M.C.
    was evasive; third, he exhibited jealousy when he discovered that the
    complainant had a boyfriend; and fourth, S.C.s statement, why dont you just
    fuck Dad, showed that she knew that something improper was going on between her
    daughter and Mr. [T.J.].

[24]

Mr.
    Dineen, on behalf of the appellant, does not challenge the second and third
    reasons given by the trial judge, though he submits that they reflect an
    uncharitable reading of the appellants evidence.  He takes issue with the
    first and fourth reasons.

(1)

The Appellants Response to the Complainants Request to Touch His         Penis

[25]

The
    trial judge found that after the complainant asked to touch the appellants penis,
    the appellant spoke to no one about the incident, took no steps to make sure it
    did not happen again, indeed, did not even alter his bedtime routine.  The
    trial judge said:

If I were to accept Mr. [T.J.]s evidence that he did not allow
    her to touch his penis and that nothing of a sexual nature occurred after that,
    as a step-father to his girlfriends daughter and knowing that [M.C.] had been
    in foster care for two to three years prior to moving in with him, I would have
    expected that Mr. [T.J.]s reaction to the request would have been not only one
    of shock but that he would have taken immediate steps to make sure that someone
    else knew about this behaviour and to have it addressed.

There was no evidence before me that he ever spoke to the
    childs mother, [S.C.], about his particular exchange with [M.C.].  After such
    an incident, one would have expected that a very serious and urgent discussion
    would have taken place with the childs mother.  There was also no evidence
    that he spoke with anyone else about the incident.  The obvious person that
    comes to mind would have been the Childrens Aid worker, who [M.C.] confirmed
    came to the home regularly after she began living there every two to three
    months.

I would also have expected that such an incident would have
    prompted some steps to be taken to ensure that nothing like that happened
    again; those steps being to alter the regular bedtime routine and to make a
    point of not being alone with [M.C.].  That would have been the type of action that
    a reasonable adult would take in the circumstances but the defendant took none
    of those steps.

On the defendants own evidence, he continued with the usual
    ritual of saying goodnight to his own two children first when they were there
    and then going in to say goodnight to [M.C.] on his own without the childs
    mother.  He admitted in direct and in cross-examination that, in fact, on
    occasions [S.C.] did comment on the amount of time that he was spending in [M.C.]s
    room saying goodnight to her.

[26]

The
    trial judges finding on the appellants response to the incident was an
    important basis for her rejection of his evidence.  Yet, the basis for this
    finding is not made out for the following two related reasons.

[27]

First,
    her finding is not supported by the evidence.  To the contrary, the record is
    silent on whether the appellant spoke to anyone or took any steps after the
    incident because he was not asked if he did so, either by his own counsel or by
    the Crown.  Without evidence, the trial judge could not assume that the
    appellant did nothing and then use that assumption to reject his testimony.  As
    this court said in
R. v. R.C.
, 2008 ONCA 98, [2008] O.J. No. 480, at
    para. 9:

He answered the questions that were put to him.  His
    failure to offer detail not sought by the questions asked cannot provide a
    reasonable basis for disbelieving the appellants evidence.

[28]

Second,
    parents react in many different ways to the unexpected actions of their
    children.  Even if the appellant spoke to no one and did nothing about the
    incident, including not changing his bedtime routine, he may have had a good
    reason for his own inaction.  Or, as the Crown maintains, his inaction could be
    seen as inconsistent with his denial of a sexual relationship with the
    complainant.  Either inference was available to the trial judge, but only if
    the appellant was given an opportunity to explain why he did nothing.  As he
    was not given that opportunity because neither counsel asked him about it,
    rejecting his evidence for his supposed inaction was unfair.

[29]

I
    therefore conclude that the trial judge erred by relying on the appellants
    response to the complainants request to touch his penis as a basis for
    rejecting his evidence.

(2)

S.C.s Out-of-Court Statement

[30]

The
    defence elicited S.C.s statement at the backyard pool, why dont you just
    fuck Dad.  It sought to show that the appellants reaction  shock  was
    consistent with his innocence.  The trial judge, however, fastened on S.C.s
    statement as another basis to reject the appellants evidence and conclude that
    he and the complainant had a sexual relationship:

A finding that there was a relationship between Mr. [T.J.] and [M.C.]
    makes sense when put in the context of an event that took place in the summer
    of 2007.  This event was confirmed by both [M.C.] and Mr. [T.J.] as happening. 
    [S.C.] had returned home from being out and observed the three children peeling
    Mr. [T.J.]s sunburned back and she said to [M.C.], Why dont you just fuck
    him?  While Mr. [T.J.] testified that [M.C.] was shocked by this statement and
    that he called [S.C.] on it, the only logical inference that one can draw was
    that [S.C.] knew that something improper was going on between her daughter and
    Mr. [T.J.].

[31]

The
    trial judge was not entitled to use S.C.s statement in this way.  The trial
    judge implied from S.C.s words that she knew that something improper was
    going on between her daughter and Mr. [T.J.].   Used in this way, the statement
    was hearsay because the trial judge used the implied meaning of the words for
    the truth of their contents: see
R. v. Baldree
, 2013 SCC 35, [2013] 2
    S.C.R. 520. Even more problematic, the trial judge went further and used S.C.s
    statement as one piece of evidence supporting her finding of a sexual
    relationship between the appellant and M.C.

[32]

The
    Crown submits that S.C.s statement was admissible under the state of mind
    exception to the hearsay rule. I disagree. Even if the trial judge had relied on
    S.C.s statement merely to determine her state of mind  instead of relying on
    the statement as evidence of an improper relationship  it would be inadmissible.
    It does not satisfy the requirements of the state of mind exception to the
    hearsay rule.

[33]

To
    be admissible under the state of mind exception, S.C.s state of mind must be
    relevant and the statement must be made in a natural manner and not under
    circumstances of suspicion:
R. v. Starr
, 2000 SCC 40, [2000] 2 S.C.R.
    144, at para. 168. Although S.C.s knowledge of the alleged relationship
    between M.C. and the appellant may have been relevant,
[2]
her statement was not made in circumstances free of suspicion. We do not know
    the foundation for her statement. It was made just a few months before S.C. and
    the appellant separated, at a time when their relationship was already
    strained. S.C. could have misperceived the relationship between her daughter
    and the appellant, or could even have impliedly lied about the relationship. In
    these circumstances, her statement was made under circumstances of suspicion
    and was not admissible under the state of mind exception.

[34]

However,
    as I have said, the trial judge used S.C.s statement to support her finding of
    a sexual relationship between M.C. and the appellant. Used in this way, the
    statement was hearsay and presumptively inadmissible. To be admissible, it had
    to meet the twin requirements for admissibility: necessity and reliability.  It
    met neither.  It did not meet the necessity requirement because S.C. was
    available to testify but was not called as a witness by either the defence or
    the Crown. As no explanation was provided for the parties failure to call her,
    necessity is not made out.

[35]

The
    statement did not meet the reliability requirement because, as already discussed,
    it is unclear what S.C. intended by it. Reading an implied assertion into
    S.C.s statement that she knew something improper was going on is no more
    tenable a reading of her statement than one implying that she made a misleading
    innuendo because she was angry with the appellant or had misperceived events.
    The ambiguity in her statement does not allow any reliable conclusion about the
    implied assertion, if any, contained in it.   As she was not called as a
    witness and therefore not cross-examined on her statement, any determination of
    what, if anything, could be implied by it is too unreliable to be admissible:
R.
    v. Esrabian
, 2013 ONCA 761, 313 O.A.C. 273, at para. 46.

[36]

In
    the light of these reliability concerns, the trial judges use of S.C.s
    statement was highly prejudicial to the appellant. As the Supreme Court
    emphasized in
Starr
, at para. 199, by excluding unreliable
    out-of-court statements, the hearsay rule plays an important role in ensuring
    trial fairness:

[A] fundamental concern with reliability lies at the heart of
    the hearsay rule. By excluding evidence that might produce unfair verdicts, and
    by ensuring that litigants will generally have the opportunity to confront
    adverse witnesses, the hearsay rule serves as a cornerstone of a fair justice
    system.

[37]

S.C.s
    statement raises all of these reliability concerns. I therefore conclude that
    the trial judge improperly relied on S.C.s out-of-court statement as a basis
    to reject the appellants evidence.

D.

conclusion

[38]

These
    two erroneous bases for rejecting the appellants evidence tainted the trial
    judges credibility finding.  Accordingly the appellants convictions cannot
    stand.  I would allow the appeal, set aside the convictions and order a new
    trial.

Released: April 25, 2014 (M.R.)

John Laskin J.A.

I agree. M. Rosenberg J.A.

I agree. Gloria Epstein J.A.





[1]
Sexual exploitation, sexual interference, sexual assault, and invitation to
    sexual touching



[2]
S.C.s statement may have been relevant because the defence relied on the
    appellants shocked reaction as evidence that there was no improper
    relationship.


