



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    that could identify the complainant or a witness shall not be published in any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.




WARNING

THIS IS AN APPEAL UNDER THE

YOUNG OFFENDERS ACT

AND IS SUBJECT TO S. 38 OF THE ACT WHICH
    PROVIDES:

38.(1)  Subject to this section, no person shall
    publish by any means any report

(
a
)   of an offence committed or
    alleged to have been committed by a young person, unless an order has been made
    under section 16 with respect thereto, or

(
b
)   of a hearing, adjudication,
    disposition or appeal concerning a young person who committed or is alleged to
    have committed an offence

in which the name of the young person, a child or
    a young person who is a victim of the offence or a child or a young person who
    appeared as a witness in connection with the offence, or in which any
    information serving to identify such young person or child, is disclosed.

* * *

(2)  Every one who contravenes subsection (1),

(
a
)   is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding two years; or

(
b
)   is guilty of an offence
    punishable on summary conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.G., 2016 ONCA 316

DATE: 20160502

DOCKET: C56860

Strathy C.J.O., Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.G.

Appellant

Daniel J. Brodsky, for the appellant

Shawn Porter, for the respondent

Heard: April 22, 2016

On appeal from the conviction entered on December 13,
    2012 by Justice Joyce Elder of the Ontario Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of the sexual assault of C.D. The Crown
    alleged that in 1984, he and K.I., the complainants cousin, had intercourse
    with the then-8-year-old complainant at her home while K.I. was babysitting
    her. The appellant was 13 years old at the time.

[2]

The appellant testified at trial in 2012 that he was at the
    complainants home on one occasion when he was 13. He confirmed that K.I. was
    babysitting the complainant, and testified that K.I.s younger brother was also
    there. He recalled both K.I. and the younger brother going into the
    complainants bedroom, but denied knowing that a sexual assault had occurred,
    or that he had sexually assaulted the complainant.

[3]

The trial judge found that the appellant was not a credible witness and
    concluded that the appellants guilt had been established beyond a reasonable
    doubt.

[4]

The trial judge erred in two respects in coming to these conclusions:

·

She drew an adverse inference as to the appellants credibility
    from his pre-trial silence concerning the younger brothers presence; and

·

She used K.I.s guilty plea to sexual assault of the complainant
    to corroborate the evidence of the complainant.

[5]

The Crown concedes that it would be an error to draw an adverse
    inference from an accuseds pre-trial silence, but submits that the trial judge
    did not draw such an inference. The Crown submits that the trial judge found
    that the appellant was not credible because of his selective memory and
    inconsistencies in his testimony about the younger brothers role in the
    incident.

[6]

The trial judges reasons make it clear that she did, in fact, draw an
    adverse inference from the appellants pre-trial silence:

I found [C.G.s] explanation for remembering K.I. and [the
    younger brother] going into the bedroom with the complainant difficult to
    follow.
When this is coupled with his admission that he
    had never previously disclosed that K.I.s brother was there and might have
    been involved, I do not find C.G. to be a credible witness.
[Emphasis
    added.]

[7]

This was an error. The trial judge also erred in using K.I.s guilty plea
    to corroborate the evidence of the complainant. Had K.I. been available to be called
    as a witness  which he was not, as he died before the appellants trial  his
    guilty plea would have been relevant to his credibility and to his own involvement
    in the sexual assault. However, a guilty plea by a co-accused, not called at
    trial, cannot be used to support the Crowns case.

[8]

For example, in
R. v.

C. (P.)
, 2015 ONCA 30, 321
    C.C.C. (3d) 49, a young offender was tried separately from four adults on a
    charge that he had aided and abetted a murder. The four adults pleaded guilty 
    one to murder, two to manslaughter, and one to aggravated assault. The trial
    judge instructed the jury that the guilty plea to murder by one of the four adults
    could be used as evidence against the accused. On appeal, this court held, at
    paras. 43-46, that the trial judge had erred:

The trial judge explained that the determination that Xiao had
    committed murder was the logical first step in deciding whether the appellant
    had aided and abetted Xiao in committing an unlawful act. She told the jury
    they could use that plea and conviction to conclude that Xiao had committed
    murder.

The trial judge erred in law when she told the jury that it
    could use Xiaos guilty plea and conviction as evidence against the appellant.
    See
R. v. Simpson
, [1988] 1 S.C.R. 3;
R. v. MacGregor
(1981),
    64 C.C.C. (2d) 353 (Ont. C.A.);
R. v. Pentiluk
(1974), 21 C.C.C. (2d)
    87 (C.A.), at 92.

Xiaos guilty plea was no more than hearsay evidence that Xiao
    had committed murder, and could not be considered in determining the
    appellants guilt. In
R. v. MacGregor,
Martin J.A. said, at pp.
    357-58:

Admittedly, it was an error for the trial judge to fail to
    instruct the jury that in considering the case against the appellant they
    should disregard the pleas of guilty of manslaughter by the co-accused and that
    those pleas were not in any way to be taken into account in considering the
    case against the appellant.

This statement of the law was adopted by the Supreme Court in
R.
    v. Simpson
.

[9]

In the present case, it was an error for the trial
    judge to rely on K.I.s guilty plea as support for the complainants version of
    events.

[10]

Given
    that this case turned on credibility, the Crown has not established that the
    verdict would necessarily have been the same without the two errors identified
    above  one error undermining the appellants credibility, the other enhancing
    the complainants credibility.

[11]

In
    the result, the appeal is allowed, the conviction set aside, and a new trial
    ordered.

G.R. Strathy C.J.O.

G. Pardu J.A.

M.L. Benotto J.A.


