



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    that could identify the complainant or a witness shall not be published in any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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 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,
    c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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. Graziano, 2015 ONCA 491

DATE: 20150630

DOCKET: C57218

Laskin, Epstein and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Giuseppe Graziano

Appellant

Alejandro Munoz, for the appellant

Lorna Bolton, for the respondent

Heard: October 27, 2014

On appeal from the conviction entered on May 17, 2013,
    and the sentence imposed on June 21, 2013, by Justice Kim A. Carpenter-Gunn of
    the Superior Court of Justice, sitting without a jury.

Laskin
    J.A.:

A.

Overview

[1]

The appellant Giuseppe Graziano was a teacher in a Hamilton high school.
    After an eight-day trial before Carpenter-Gunn J., he was convicted of sexual
    interference with and sexual assault of J.M., a 14-year-old male student in
    Grade 9. He was sentenced to six months in jail. Initially he appealed both his
    convictions and his sentence, but he has now abandoned his sentence appeal and
    appeals only his convictions. The principal issue on the appeal is whether the
    trial judge erred by permitting the Crown to recall one of its witnesses in
    reply.

(a)

What this case is about

[2]

Two incidents in early 2011 gave rise to these proceedings, though the
    charges against the appellant arose out of the second incident. Credibility was
    the central issue at trial. The trial judge had to decide whether the
    appellants denial raised a reasonable doubt, and even if it did not, whether
    on all the evidence she did accept she was convinced of the appellants guilt
    beyond a reasonable doubt.

[3]

The first incident occurred on January 26, at the end of a French exam J.M.
    was writing. The appellant was not J.M.s teacher, but he was monitoring the
    exam. During the exam, the appellant had assisted J.M. with some of his
    answers, even, according to J.M., writing out several answers in J.M.s exam
    booklet.

[4]

J.M. testified that as he was leaving the exam room, after handing in his
    booklet, the appellant said to him you know you owe me, right?, made a
    gesture suggesting a hand job, and then said something like a blow job. In
    his testimony the appellant admitted saying you owe me, but denied making a
    hand gesture or saying anything suggestive of a blow job.

[5]

The second incident occurred two weeks later, on February 9. J.M. had
    been suspended from school for three days for his role in encouraging a fight between
    some other students. Just after the suspension had been imposed, the appellant
    saw J.M. in the hallway. The appellant testified that J.M. seemed angry, and that
    he asked to come inside the appellants classroom so he could vent about the
    suspension. J.M. testified that the appellant asked him to come in and discuss
    the French exam. Both agreed that the room was darkened or dimly lit, and that the
    appellant and J.M. were alone in it for about 30 minutes. J.M. testified that
    while he was there, the appellant asked him how big his penis was and whether
    he had ever done anything with another guy. He told J.M. not to tell anyone
    what he had said. As J.M. was leaving, the appellant asked to see his penis, to
    which J.M. said no. The appellant then touched J.M.s penis over his clothes.
    The appellant denied that he had asked about or touched J.M.s penis.

(b)

The trial judges reasons
    for conviction

[6]

The trial judges reasons are lengthy. She set out in detail the
    evidence of each witness. And she gave several reasons why she was convinced
    beyond a reasonable doubt of the appellants guilt.

[7]

Pivotal to the trial judges assessment of the evidence were J.M.s
    reactions and demeanour after the February 9 incident in the classroom. By all
    accounts, even that of the appellant, J.M. was angry and emotional on the
    afternoon of February 9. The defences theory was that J.M. was angry because
    he had been suspended from school and would not be permitted to play in an
    important basketball game. The Crowns theory was that J.M was angry and
    emotional, even tearful, according to some witnesses, because he had been
    sexually assaulted. In accepting the Crowns theory, the trial judge relied on
    video surveillance evidence and on the evidence of two of his classmates and
    that of an educational assistant, the first adult to whom J.M. disclosed what
    the appellant had done.

[8]

The school had a video surveillance system, which, though not used in
    the classrooms, intermittently scanned the schools hallways. The video
    captured some of J.M.s movements on February 9 after he left the classroom,
    including when he approached the appellant to speak to him about 30 minutes
    later. It also showed a conversation between J.M. and Vice-Principal Tim Hogan,
    who had suspended him. The trial judge found that the video corroborated J.M.s
    evidence, as it showed that his anger was directed not towards the
    vice-principal, but towards the appellant.

[9]

Two of J.M.s classmates, who saw J.M. on February 9 after he left the
    classroom, and the educational assistant, who saw him both before and after the
    classroom incident, all testified about J.M.s changed demeanour. In the light
    of this evidence and the video surveillance, the trial judge found that J.M.s
    change in demeanour was attributable to the sexual abuse, not to his
    suspension.

[10]

The
    trial judge also gave two other important reasons for rejecting the appellants
    evidence. The first was the appellants response when he was called to a
    meeting at the principals office on February 10, the day after the classroom
    incident. The appellant was told that an allegation had been made against him
    and that he was being suspended from teaching. He was not told the nature of
    the allegation, who had made it, or even whether the complainant was a male or
    a female student. Yet when told of the suspension, the appellant immediately
    asked, Is this about [J.M.]?

[11]

The
    other reason the trial judge gave for rejecting the appellants evidence arose
    out of the appellants brief encounter with Vice-Principal Hogan on February 9,
    shortly after the classroom incident. As I will discuss, the evidence of the
    appellant and Hogan about what was said at that meeting differed significantly.
    The trial judge accepted the evidence of Hogan, whom she found to be a
    thoughtful and credible witness.

[12]

The
    trial judge then summarized her reasons for convicting the appellant:

[M]y decision is primarily based on the independent video
    evidence, the post-event demeanour evidence, and the fact that there was no
    motive for [J.M.], the complainant, to lie about the evidence against the
    accused, combined with the events of the meeting of February 10, 2011, and also
    combined with the corroborating evidence of the other witnesses that I have
    articulated.

(c)

The grounds of appeal

[13]

In
    his factum, the appellant raised numerous grounds of appeal. In oral argument,
    however, the appellants counsel narrowed his appeal to three submissions. His
    first and main submission was that the trial judge erred by permitting the
    Crown to call Vice-Principal Hogan in reply. More specifically, the appellant
    argued that the trial judge erroneously concluded Hogans reply evidence was
    permissible under the rule in
Browne v. Dunn
(1893)
, 6 R. 67 (H.L. (Eng.)), yet gave
    no reasons for her conclusion.

[14]

The
    appellants second submission was that the trial judge improperly relied on the
    evidence of three parties who were not called as witnesses. The appellants
    third submission was that the trial judge failed to resolve inconsistencies in
    the evidence of J.M., which undermined the reliability and credibility of his
    evidence.

[15]

For
    the reasons that follow, I would not give effect to any of the appellants
    submissions. I would therefore dismiss his appeal.

B.

The issues on appeal

(1)

Did the trial judge err by
    permitting the Crown to call Hogan in reply?

(a)

How the issue arose

[16]

The
    Crown called as one of its witnesses, Vice-Principal Tim Hogan. In his evidence,
    Hogan acknowledged that on the afternoon of February 9 he met briefly with the
    appellant in the hallway. In cross-examination he was asked:

Q.      All right. So, youre there for a very brief period of  time?

A.      Yes.

Q.      Exchanged pleasantries with Mr. Graziano?

A.      I dont recall, but I could have.

Q.      Okay. It would be the normal thing to do, at least    acknowledge
    that hes there; right?

A.      Yes, sure.

[17]

Hogan
    was not questioned further about his brief encounter with the appellant.

[18]

The
    appellant testified. During his examination-in-chief, he said that when he
    spoke with J.M. in the classroom, J.M. was extremely upset about his suspension
    and was angry at Vice-Principal Hogan. The appellant said J.M. swore and called
    Hogan a fucking asshole. Shortly after J.M. left the classroom, the appellant
    encountered Hogan in the hallway.

[19]

The
    appellant claimed that during their encounter, Hogan commented to him, that
    kid [J.M.] is strange. Defence counsel then said to his client, I think I
    have to stop you there, because I dont want to hear that.

[20]

Crown
    counsel, however, objected that the comment the appellant attributed to Hogan
    had never been put to Hogan when he testified. Defence counsel then suggested
    that Crown counsel could ask the appellant about his encounter with Hogan.

[21]

In
    cross-examination, Crown counsel put to the appellant that he had said nothing
    to Hogan about J.M.s anger or that J.M. (according to the appellant) was
    vitriolic toward Hogan and had called him a fucking asshole. The appellant
    responded, oh, yes, I did. The Crown again complained that the appellants
    evidence had not been put to Hogan when he testified. Eventually the trial
    judge intervened and observed that a potential remedy was available: the Crown
    could recall Hogan. Defence counsel said nothing and the Crown continued his
    cross-examination about what the appellant had said to Hogan.

[22]

The
    appellant then testified that he had a more detailed conversation with Hogan
    than a mere exchange of pleasantries, as Hogan had testified to in his
    evidence. The appellant repeated that Hogan had said that kid is weird. The cross-examination
    continued:

Q.      Okay, sir. But, did you go so far as to say, This was
    something Ive never seen before, Mr. Hogan. This kid was out of control. He
    was calling you every name in the book. And, Im telling you, hes one angry
    kid. In fact, he left here saying the first person he sees, hes going to punch
    out?

A.      Correct.

Q.      Did you tell him all that?

A.      Well, I did say, He has been calling you effin
    asshole up and down and he was very angry. He says, I dont care. Thats my
    job.

Q.      But, Im curious. Why couldnt Mr. Hogan have been
    asked that? I guess maybe you dont know the answer to that. But, is this
    something you told Mr. Markle?

A.      Yes.

Q.      I see. And, you have related to Mr. Hogan the concerns
    you had for his safety, the extent of the tirade by young [J.M.] in the room. And,
    did you explain to him that you had, in fact, harboured [J.M.] for the 35 or 40
    minutes?

A.      Well, it wasnt 35, no, 40. It was less than that. But,
    yes, I did tell him.

Q.      I see.

A.      I had nothing to hide. I explained to Mr. Hogan
    everything that had gone on. We had a brief discussion, the two of us. And,
    that was that.

[23]

The
    next morning, counsel discussed how to deal with the appellants testimony
    about his conversation with Hogan, which Hogan had not been asked about. The
    Crown and the trial judge thought that the rule in
Browne v. Dunn
came
    into play. The trial judge said:

And, I made the suggestion yesterday that one way of dealing
    with it is to re-call Mr. Hogan. And, weve got to be sensitive and alive to
Browne
    v. Dunn
on the one hand, and we dont know  we cant split the case on
    the other hand, but it is an important area.

[24]

And
    then a few minutes later, the trial judge added:

But, now this issue is out there, and we have already had this
    other witness in the box. So, I think it is a
Browne v. Dunn
situation.
    So, I tend to agree with the Crown that it is that type of situation. So, the
    question is, what do we do about it, at this point?

[25]

The
    Crown announced that he intended to call Hogan in reply. And, just before court
    adjourned for the day, the Crown reiterated that he intended to re-call Hogan. Defence
    counsel did not then raise any objection to re-calling Hogan.
[1]

[26]

Hogan
    testified in reply. He denied having the conversation with the appellant to
    which the appellant testified. He did not refer to J.M. as strange, and the
    appellant never told him J.M. had called him a fucking asshole. Hogan said
    that had J.M. done so, he would likely have increased the length of his
    suspension.

(b)

The submissions at trial on
    Browne v. Dunn

[27]

After
    Hogans reply evidence concluded, the trial judge heard submissions on a number
    of issues, including
Browne v. Dunn
. The majority of these submissions
    concerned the appellants testimony about what J.M. said to him. The Crown objected
    that statements attributed to J.M. were not put to him during
    cross-examination. The Crown said it did not wish to recall J.M., but asked
    that the trial judge apply the rule in
Browne v. Dunn
and give little or
    no weight to the appellants testimony.

[28]

Defence
    counsel submitted that the rule in
Browne v. Dunn
had not been breached and
    that the court should not discount the appellants evidence. Like the Crown,
    the majority of the defence submissions concerned the appellants evidence
    about J.M. and whether
Browne v. Dunn
applied to that part of his testimony.

[29]

Defence counsels
    submissions about Hogan largely concerned an issue related to solicitor-client
    privilege. With respect to
Browne v. Dunn,
defence counsel did object
    that it was improper for the Crown to elicit answers during cross-examination
    in order to rely on the rule. However, defence counsel never expressed any
    objection to Hogans having been called as a reply witness. Nor did he suggest
    that Hogans evidence should not be relied on.

(c)

The trial judges reliance
    on Hogans evidence

[30]

The
    trial judge found Hogan to be a credible witness and relied heavily on his
    evidence to disbelieve the appellants testimony about the incident in the classroom
    with J.M. Indeed, the trial judge referred to Hogans evidence and why she
    accepted it over the appellants evidence in three separate passages in her
    reasons. First she said:

Where there is a conflict between the evidence of the accused
    and Mr. Hogan, the Vice Principal, I accept the evidence of Mr. Hogan. Mr.
    Hogan is an independent witness to the matters in issue. I find he was a
    thoughtful, credible witness. I was impressed by his demeanour.

Mr. Hogan denied many statements that the accused said were
    part of the conversation between the accused and Mr. Hogan. For example, that
    the accused told Mr. Hogan that [J.M.] had called him, A fucking asshole. I
    accept Mr. Hogans evidence that had this information been given to Mr. Hogan,
    he would have increased [J.M.s] suspension and he would have been shocked.

[31]

Then:

I found Mr. Hogans evidence to be credible. I found Mr.
    Hogans evidence discredits the accuseds evidence as to what he said he had
    told Mr. Hogan.

This finding leads me to the conclusion that the accuseds
    testimony about what took place in the classroom on February 9, 2011, should
    not be accepted. Rather I accept [J.M.s] testimony as to what took place in
    the classroom on February 9, 2011.

[32]

And
    finally:

I also note that the reply evidence of Mr. Hogan was
    unchallenged by the defendant. Given this, I find an inference can be made that
    Mr. Graziano lied about what he says was the substance of the conversation
    between he and Mr. Hogan.

I find if Mr. Graziano had said things to Mr. Hogan on February
    9
th
that he says were discussed that the meeting of February 10 in
    the school office would have been quite different than it in fact was.

[33]

Hogans
    evidence, including his reply evidence, was central to the trial judges
    credibility findings. If she erred in permitting the Crown to call Hogan in
    reply, then the appellant would be entitled to a new trial.

(d)

Discussion

[34]

The
    trial judge viewed the issue as one calling for consideration of the rule in
Browne
    v. Dunn
. The appellant submits that if that was her view, she erred by
    failing to give any reasons for concluding that the rule allowed the Crown to
    call Hogan in reply.

[35]

I
    do not think that the rule in
Browne v. Dunn
applies to the situation
    that arose on the appellants cross-examination. This court summarized the rule
    in
R. v. Henderson
(1999), 44 O.R. (3d) 628 (C.A.), at p. 636:

This well-known rule stands for the proposition that if counsel
    is going to challenge the credibility of a witness by calling contradictory
    evidence, the witness must be given the chance to address the contradictory
    evidence in cross-examination while he or she is in the witness-box.

[36]

Here,
    however, defence counsel did not call contradictory evidence from his client.
    Quite the contrary. He did not wish to lead evidence from his client about any
    conversation between the appellant and Hogan. Had he done so, without first
    putting the contradictory evidence to Hogan on cross-examination, then
    depending on the significance of the evidence, the rule in
Browne v. Dunn
might well have been breached.

[37]

But
    the evidence the Crown wanted to address by calling Hogan in reply came from
    the appellant almost entirely during his cross-examination. Thus, to the extent
    the trial judge relied on the rule in
Browne v. Dunn
to permit the
    Crown to call Hogan in reply, she erred. The proper approach would have been to
    consider whether permitting the Crown to call Hogan in reply offended the rule
    that prohibits the Crown from splitting its case. In
Krause v. The Queen
(1986), 29 C.C.C. (3d) 385 (S.C.C.), at pp. 390-91, McIntyre J. set out the
    rule against case-splitting and its rationale:

The general rule is that the Crown, or in civil matters the
    plaintiff, will not be allowed to split its case. The Crown or the plaintiff
    must produce and enter in its own case all the clearly relevant evidence it
    has, or that it intends to rely upon, to establish its case with respect to all
    the issues raised in the pleadings; in a criminal case, the indictment and any
    particulars The underlying reason for this rule is that the defendant or the
    accused is entitled at the close of the Crowns case to have before it the full
    case for the Crown so that it is known from the outset what must be met in
    response. [Citations omitted.]

[38]

In
    my opinion, however, the Crowns calling Hogan in reply did not breach this
    rule. In
Krause
, at p. 391, McIntyre J. discussed the exception to the
    rule against case-splitting  that is, when the Crown may be entitled to call
    reply evidence:

The plaintiff or the Crown may be allowed to call evidence in rebuttal
    after completion of the defence case, where the defence has raised some new
    matter or defence which the Crown has had no opportunity to deal with and which
    the Crown or the plaintiff could not reasonably have anticipated.

[39]

It
    seems to me the exception referred to in
Krause
applies here. In his
    examination-in-chief, the appellant had testified about J.M.s angry and
    vitriolic comments about Hogan. He had also testified, albeit briefly, that he
    and Hogan discussed J.M. It was reasonable for the Crown to test the
    appellants evidence, as he did, by suggesting that if J.M. had said the things
    the appellant claimed, the appellant would have reported the exchange to Hogan.
    The appellant claimed he did tell Hogan, and recounted their conversation. And,
    even though defence counsel intentionally chose not to question his client
    about his conversation with Hogan, it was the appellant who brought up the conversation
    during his examination-in-chief, and expanded on it under cross-examination.

[40]

The
    Crown could not reasonably have anticipated the appellants evidence about his
    conversation with Hogan, and thus had no opportunity to deal with it during
    Hogans examination-in-chief. And it was important evidence because unless it
    was contradicted, it seemed to support the defences theory that J.M. was angry
    and emotional because of his suspension from school, and not because he had
    been sexually assaulted. Thus, I think it was within the trial judges
    discretion to permit the Crown to call Hogan in reply. Moreover, defence
    counsel at trial made at most a lukewarm objection to this reply evidence being
    called. Accordingly, I would not give effect to the appellants main ground of
    appeal.

(2)

Did the trial judge improperly
    rely on the evidence of three parties who were not called as witnesses?

[41]

In
    her lengthy reasons, the trial judge referred to an email from a woman named
    Nancy Brown, who apparently commuted daily to the school with the appellant.
    The appellant had been ordered by the school board not to talk to anyone about
    the incident with J.M. The contents of Ms. Browns email suggested he had
    breached this order, and the trial judge so found. Nancy Brown, however, was
    not called as a witness at trial. Her email was thus inadmissible hearsay.

[42]

The
    Crown on appeal acknowledges that the trial judge should not have used the
    contents of the email to comment adversely on the appellant. However, the Crown
    submits the trial judges error in doing so was harmless. I agree. In rejecting
    the appellants evidence the trial judge did not rely on the email.

[43]

Similarly,
    in her lengthy narrative of the evidence, the trial judge referred to
    statements given by two other students. Although neither student was called as
    a witness, and thus their statements were inadmissible hearsay, the trial judge
    did not rely in any way on either students statement.

[44]

I
    would dismiss this ground of appeal.

(3)

Did the trial judge err by failing
    to resolve inconsistencies in the evidence of J.M.?

[45]

The
    appellant submits that there were inconsistencies in J.M.s evidence, that they
    undermined the reliability and credibility of his testimony, and that the trial
    judge erred by failing to resolve these inconsistencies. I do not agree with
    the appellants submission.

[46]

The
    trial judge expressly addressed inconsistencies in J.M.s evidence. But she
    found that on the two critical questions  what happened on January 26 during
    the French exam and what happened on February 9 in the classroom  the thrust
    of [J.M.s] evidence remained the same. She did not err in that finding. Thus,
    I would not give effect to this ground of appeal.

(4)

Other issues

[47]

The appellant raised several other issues in his notice of appeal and
    his factum, which he did not press in oral submissions. These included that the
    trial judge erred in her application of
R. v. W.(D.)
, [1991] 1 S.C.R.
    742; that she erred in not ruling on whether the Crown had improperly asked the
    appellant to waive solicitor-client privilege; and that she erred in admitting
    similar fact evidence. As I have said, the appellant did not pursue these
    issues and I see no merit to them. I would dismiss these grounds of appeal.

C.

Conclusion

[48]

I
    would dismiss the appellants appeal from his convictions. The sentence appeal is
    dismissed as abandoned.

Released: June 30, 2015 JL

John
    Laskin J.A.

I
    agree Gloria Epstein J.A.

I
    agree K. van Rensburg J.A.





[1]
Crown counsel said he may also wish to call J.M. in reply because the appellant
    had given evidence about his conversations with J.M. which were not put to him
    in cross-examination. Defence counsel did express concerns about recalling J.M.
    This concern did not have to be resolved because the Crown elected not to call
    J.M. in reply.


