



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that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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that could identify the victim shall not be published in any document or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. J.J., 2020 ONCA 138

DATE: 20200219

DOCKET: C67006

Lauwers, Trotter and Fairburn
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.J.

Appellant

Jaime Mor, for the appellant

Nicolas de Montigny, for the respondent

Heard and released orally:
February 13, 2020

On appeal from the conviction entered on
June 28, 2018 by Justice Jon-Jo Douglas of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

This is an appeal from conviction on one count
of sexual assault. In arriving at his conclusion on the appellants guilt, the trial
judge is said to have erred in his use of transcripts from the complainants
police statement and preliminary inquiry evidence.

[2]

Those transcripts had been used during the
cross-examination of the complainant to confront her with alleged inconsistencies
between what she had previously said and what she testified to at trial. This
was done in an effort to impeach her credibility. In re-examination, the Crown
put other passages from the transcripts to the complainant in an effort to
neutralize the strength of the alleged prior inconsistencies by showing certain
consistencies between what the complainant had previously said and her
viva
voce
evidence.

[3]

The parties offered to assist the trial judge by
giving him copies of the transcripts of the prior police statement and
preliminary inquiry evidence. Somewhat unusually, the transcripts got marked as
numbered exhibits at trial. Despite this fact, counsel were clear that the sole
purpose for which the transcripts were being provided to the trial judge was to
assist him in recalling the portions of transcript that had been put to the
complainant during her
viva voce
evidence. This understanding was
subsequently confirmed with the trial judge in writing from counsel, when they
specifically identified for his consideration the relevant page references from
the transcript that had been put to the complainant when she testified at
trial.

[4]

The reasons for judgment make clear that, rather
than staying focused on what had been put to the complainant at trial, the
trial judge considered the entirety of the transcripts to assist in his
reasoning process. Accordingly, the respondent fairly acknowledges that the
transcripts were used for a purpose other than that for which they were filed.
Despite having used the transcripts for a different purpose than that agreed to
by counsel at trial, the respondent argues that the trial judge did not use
them for a legally improper purpose.

[5]

We do not agree.

[6]

The transcripts  in their entirety  were used by
the trial judge as an essential component of his credibility assessments. He
quoted from those transcripts at length, specifically numerous passages that
were never put to the complainant during her
viva voce
evidence. He
then observed that the three interrogations of the complainant were internally
consistent. He gave this as a reason for preferring the complainants evidence
and rejecting the evidence of the accused.

[7]

This improper use of the prior statements
rendered the trial fundamentally unfair. In these circumstances a new trial is
required.

[8]

The appeal is allowed, and a new trial is
ordered.

P. Lauwers J.A.

G.T. Trotter J.A.

Fairburn J.A.


