



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    the complainant or a witness shall not be published in any document or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. E.H.,
    2014 ONCA 622

DATE: 20140904

DOCKET: C54595

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E.H.

Appellant

Robert C. Sheppard, for the appellant

Michael Perlin, for the respondent

Heard and released orally: August 27, 2014

On appeal from the conviction entered on February 17,
    2011 by Justice T. David Little of the Superior Court of Justice, sitting with
    a jury.

ENDORSEMENT

[1]

The appellant was convicted of sexual touching and invitation to sexual
    touching after a jury trial. He appeals his conviction on two grounds. Each
    ground relates to the trial judges final instructions to the jury.

[2]

For all practical purposes, this was a two witness case.

[3]

The complainant was four years of age at the time of the conduct alleged
    to constitute the offences of which the appellant was convicted. Her evidence
    at trial consisted of her videotaped complaint admitted under s. 715.1 of the
Criminal
    Code
, and her testimony at trial given by closed circuit television under
    s. 486.2. The essence of her complaint was that on several occasions while they
    were sitting on a couch watching television, the appellant took her hand and
    placed it on his penis. After a brief period, the appellant removed her hand
    from where he had placed it and told her that he loved her.

[4]

The appellant testified at trial. He said that on one occasion, the
    complainant, on her own initiative, put her hand down the front of his shorts
    and touched his penis. He was not wearing underwear. The appellant said he
    panicked, moved the complainant away from him and went upstairs. He returned
    wearing a pair of jeans, a belt and his top.

[5]

The first ground of appeal attacks the adequacy of the trial judges
    instructions on the burden and standard of proof. More specifically, the
    complaint is that the trial judge failed to give an express
W.D.
instruction, in terms, or by language that amounted to its functional
    equivalent.

[6]

During the pre-charge conference, the trial judge indicated that he
    proposed to include a
W.D.
instruction in his charge. Unfortunately,
    he failed to do so. Our task is to determine whether the final instructions,
    viewed as a whole, would have left the jury under any misapprehension about the
    applicable burden and standard of proof:
R. v. Y. (C.L.)
, [2008] 1
    S.C.R. 5, at paras. 7-9.

[7]

The purpose of a
W.D.
instruction is to ensure that the jury
    does not regard its decision as involving an either/or choice, rather that
    the jurors understand that they must decide, based on the whole of the
    evidence, whether they are left with a reasonable doubt about an accuseds
    guilt:
Y. (C.L.)
, at para. 6.

[8]

For several reasons, we would not give effect to this ground of appeal.

[9]

First, we note that the
W.D.
formula is not some magic
    incantation, omission of which is fatal. Indeed, in
W.D.
itself,
    despite the trial judges error, similar to what occurred here, in instructing
    the jury that they were engaged in a credibility contest, the conviction was
    nonetheless upheld: see
Y. (C.L.)
, at para. 8. The issue is not one of
    form, but rather one of substance. The issue is whether, in substance, the
    instructions, considered as a whole, left the jury with the impression that, in
    the end, they had simply to choose between the two versions of the events.
    Taken as a whole, we are satisfied that the instructions left no such erroneous
    impression in this case.

[10]

Second,
    as the appellant acknowledges, the instructions on the presumption of
    innocence, the burden of proof and the standard of proof were complete and
    correct. The jury was told that the Crown had to prove the guilt of the
    appellant beyond a reasonable doubt and that a demonstration of probable or
    likely guilt was not good enough. They were also told that if they were not
    sure of the appellants guilt, they were to find him not guilty.

[11]

Third,
    as the Supreme Court of Canada observed in
R. v. Daley
, 2007 SCC 53,
    at para. 58, the charge to the jury does not take place in isolation, but in
    the context of the trial as a whole. Appellate review must have regard to that
    context and take into account the addresses of counsel which may fill some gaps
    left in the charge, even though they are not proxies for it: see,
R. v.
    Pomeroy
, 2008 ONCA 521, at para. 117. In this case, the closing addresses
    of both counsel tracked the
W.D.
framework. Nothing in the charge
    contradicted or qualified what counsel said.

[12]

Finally,
    trial counsel for the appellant did not object to the charge on this ground,
    apparently satisfied that the instructions left the issues fairly for the jurys
    consideration from the defence point of view.

[13]

The
    second ground of appeal concerns what the trial judge told the jury about the
    testimonial accommodation made for the complainant. Here, as I have said, the
    complainant testified from outside the courtroom as s. 486.2 permits. The trial
    judge made specific mention of the manner in which the complainant testified
    when discussing how to assess the evidence. He said, in particular, this:

How do you assess the evidence?

In this case, it is quite important because of the manner and
    the nature of the witnesses. We had a video of a witness who was not in court
    and was not sworn to tell the truth sitting here in the witness box as we
    usually do.

You are to disregard that difference. There is a reason, as I
    told you, why a young person under circumstances such as this, can testify in
    the absence of the accused. That was done. The reason is that they may be
    intimidated by the presence of the accused and not tell the truth. So the law
    allows that to take place.

[14]

The
    appellant says that this instruction had the effect of implying that the
    complainants credibility was enhanced because of the manner in which she was
    permitted to testify.

[15]

We
    do not agree.

[16]

Testimony
    from outside the courtroom is one of a handful of procedural mechanisms
    available to facilitate youthful witnesses giving evidence in prosecutions for
    sexual offences. Where one of these testimonial accommodations is utilized,
    trial judges typically instruct jurors that they are to take nothing from the
    fact that the complainant or witness gave his or her evidence in a different
    way than other witnesses. And that is what occurred here.

[17]

While
    the language chosen by the trial judge here was unfortunate and did not track
    the terms used in the available specimen jury instructions, we are not
    satisfied that the jurors would have concluded from what was said, that the
    complainant was thereby a more truthful witness because of the testimonial
    accommodation. We would not give effect to this ground of appeal.

[18]

For
    these reasons, the appeal is dismissed.

David
    Watt J.A.

M.
    Tulloch J.A.

M.L.
    Benotto J.A.


