



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    that could identify the complainant or a witness shall not be published in any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. J.C., 2015 ONCA 370

DATE: 20150526

DOCKET: C58559

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.C.

Appellant

Meaghan Thomas, for the appellant

Greg Skerkowski, for the respondent

Heard: April 10, 2015

On appeal from the conviction entered by Justice C. Kehoe
    of the Ontario Court of Justice, dated October 9, 2013.

By
    the Court:

[1]

The appellant appeals from her conviction for
    sexually assaulting a child of approximately five years old.

[2]

Following a trial, the trial judge rejected the
    appellant's evidence and accepted the complainant's evidence that the appellant
    performed a single act of oral sex on her.

[3]

In her reasons for finding the appellant guilty,
    the trial judge relied, in part, on the unlikelihood that a young child would
    have the knowledge the complainant displayed about oral sex and on the absence
    of any evidence at trial concerning any source of such knowledge other than the
    conduct of the appellant complained of by the child.  At para. 224 of her
    reasons, the trial judge said:

[The complainant] was able to tell and show [the
    police officer who conducted the complainant's videotaped interview] what [the
    appellant] did to her and how she licked her vagina with her tongue. The fact
    that [the complainant] was caught showing Z, her 4 year old cousin, how to lick
    her vagina although not determinative that it was because of what the [the appellant]
    had done to [the complainant], corroborates that [the complainant] had seen or
    had the act performed on her prior to July 2009.
There is no
    evidence before the court that [the complainant] would have seen or experienced
    the act other than the one time with [the appellant]. It is obviously not
    something one would expect to be within a 6 year old child's knowledge and
    especially in [a] family where sex was not even discussed. There was no evidence
    that [the complainant] had seen similar activity in her home, on TV or anywhere
    else, other than [the appellant] licking her vagina
.
    [Emphasis added.]

[4]

On appeal, the appellant argues that the Crown
    did not contend at trial that a young child would have no knowledge of the
    sexual activity at issue. The appellant therefore submits that, to the extent the
    trial judge considered this a live issue, the trial judge erred in dismissing the
    appellants application under s. 276 of the
Criminal Code
to cross-examine the complainant in relation to prior sexual
    activity, or, in the alternative, in failing to permit the appellant to re-open
    her s. 276 application once the trial judge determined that the complainants
    knowledge about oral sex was a live issue.

[5]

In her s. 276 application, the appellant sought
    leave to cross-examine the complainant on, or lead evidence about, three
    incidents of alleged prior sexual activity.

[6]

In oral argument on appeal, the appellant
    acknowledged that the conduct allegedly involved in the first two incidents was
    not sufficiently similar to the conduct forming the subject matter of the
    offence to warrant a s. 276 order permitting that evidence to be led. She
    therefore abandoned any reliance on the first two incidents and confined her submissions
    to the third incident.

[7]

The third incident involved an interaction
    between the complainant, when she was about six, and the complainant's cousin Z.,
    when Z. was about four.

[8]

In her s. 276 application, the appellant alleged
    that Z.'s mother caught Z. "licking the complainant's privates".
    Further, the appellant alleged that the complainants mother became very angry
    when she learned about the incident and that the complainant disclosed her
    allegations against the appellant to her mother as a result of being
    disciplined by her mother.

[9]

During submissions on the s. 276 application, defence
    counsel for the appellant (not Ms. Thomas) clarified that she intended to
    cross-examine the complainant about a motive to fabricate arising from the incident
    with Z.  In her ruling on the application, the trial judge noted that defence
    counsel "stated several times there is no intention to cross-examine on
    the actual activity but simply on the consequences of being caught engaging in
    the activity."

[10]

In her ruling on the s. 276 application, the
    trial judge held that the complainant could be cross-examined as to "the
    consequences of being caught and whether she was punished and if she was
    punished and what impact that had on her reporting the allegations concerning
    the [appellant]."

[11]

On appeal, the appellant submits that, the trial
    judge's ruling on the s. 276 application created unfairness because the trial
    judge prohibited cross-examination on the incident with Z., yet relied on the absence
    of evidence at trial of any other source for the complainant's knowledge of
    oral sex to support a conviction. The appellant submits that cross-examination
    of the complainant about the incident may have revealed that Z. was actually the
    source of the complainant's knowledge about oral sex.

[12]

We do not accept these submissions.

[13]

The appellant's argument that the trial judge
    should have permitted cross-examination of the complainant at trial to show
    that the complainant may have learned about oral sex from Z. is raised for the
    first time on appeal and is contrary to the position taken by the appellant at
    trial.

[14]

At trial, the appellant's position was premised
    on the theory that the complainant was the instigator of the incident with Z.
    When cross-examining the complainant at trial, defence counsel asked the
    complainant why she had dared Z. to lick her. The appellant does not suggest on
    appeal that this question lacked a proper foundation.
[1]


[15]

Although the formal s. 276 application was
    framed as a request to cross-examine on the incident, defence counsel did not
    pursue that request on the application. Instead, as mentioned above, defence
    counsel repeatedly stated that she intended to limit cross-examination to
    questions about Z.s motive to fabricate.  Since the trial judge was not asked
    to permit cross-examination on the incident, in our view, she made no error in
    failing to permit it.

[16]

Further, in the face of the defence position at
    trial that the complainant was the instigator of the incident with Z., we see
    no error in the trial judges reliance on the absence of evidence at trial that
    the complainant would have seen or experienced oral sex other than the one time
    with the appellant and on the unlikelihood that a young child would have any
    knowledge about oral sex. As noted above, defence counsel at trial suggested in
    cross-examination that the complainant dared Z. to lick her privates and did
    not pursue the request made in the formal s. 276 application to cross-examine
    the complainant on the incident.

[17]

Similarly, we reject the appellants submission
    that, on determining that the complainants prior knowledge of oral sex was a
    live issue at the trial, the trial judge should have afforded the appellant an
    opportunity to re-open her s. 276 application. Again, there was no suggestion at
    trial that the complainant was not the instigator of the incident with Z.

[18]

Further, the appellant has not demonstrated any
    basis on appeal for ordering a new trial to permit her to make a s. 276
    application premised on a different theory than the theory she advanced at
    trial. The appellant has not claimed that defence counsel at trial's suggestion
    to the complainant that she dared Z. to lick her [the complainant's] privates
    was improper; she has not raised any other issue concerning ineffective
    assistance of counsel; and she did not make a fresh evidence application.

[19]

In all the circumstances, we are not satisfied
    that the trial judges s. 276 ruling and her subsequent reliance on the absence
    of evidence concerning an alternate source for the complainants knowledge about
    oral sex created unfairness to the appellant. Further, we see no other basis
    for ordering a new trial.

[20]

The
    appeal is therefore dismissed.

Released:

MT                                         Janet
    Simmons J.A.

MAY 26 2015                          M. Tulloch J.A.



Grant Huscroft J.A.






[1]

The evidentiary
    foundation at trial for what happened during the incident with Z. came from the
    complainants assertion in her videotaped statement to police, which she
    adopted at trial, and from the testimony of the complainants mother. In her
    videotaped statement, the complainant told police that Z. had licked her
    private and that she got in trouble. The complainants mother testified that,
    on the day in question, she heard Z.s mother scream, and she went upstairs to see
    what was going on. She found Z. squatted down and crying kind of in front of
    her daughter. Her daughter had no pants on. She was lifting up her pants and
    appeared embarrassed. The complainants mother also testified that Z.'s mother
    told her that the complainant was trying to get Z. to lick her vagina. Although
    the latter statement was hearsay, the complainants s. 276 application contains
    a statement that the complainant disclosed the details of the incident with Z.
    to her mother and a social worker on August 26, 2010. According to the s. 276
    application, the complainant advised these individuals that:

[S]he was playing
    upstairs with her friend, [Z],and that she dared Z to lick her vagina while
    they were lying down watching TV at [Zs] home. [The complainant] advised that
    this was the only thing that happened because [Zs] mother, A, came into the
    room.


