



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    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in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.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.C.J., 2013
    ONCA 205

DATE: 20130403

DOCKET: C54565

Goudge, Simmons and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. C. J.

Appellant

Brian H. Greenspan and Naomi M. Lutes, for the appellant

Suhail A.Q. Akhtar, for the respondent

Heard: March 13, 2013

On appeal from the convictions entered on August 22, 2011
    by Justice Alan D. Cooper of the Ontario Court of Justice.

By the
    Court:

[1]

The appellant appeals from his convictions for a series of sexual
    offences allegedly committed against two nieces, L.J. and L.H., and a
    great-niece, K.J.

[2]

The alleged offences involving L.J. spanned a time-frame from 1987 to
    1992. The incidents involving L.H. allegedly occurred in 1998 and 2005, and the
    incidents involving K.J. allegedly occurred sometime between 2004 and 2007. All
    of the allegations were reported in 2009.

[3]

The convictions were entered following a trial before a judge sitting
    alone. At trial, defence counsel challenged the credibility and reliability of
    the complainants allegations based on: i) the complainants delay in reporting
    their allegations; ii) developments in the complainants allegations between
    the time they were first reported and trial; and iii) alleged vagaries,
    inconsistencies and improbabilities in the complainants evidence. In addition,
    the defence called three witnesses, all family members, who testified about
    their observations of the appellants interactions with the complainants and about
    their own interactions with the appellant. The appellant did not testify.

[4]

On appeal to this court, the appellant alleges numerous errors in the
    trial judges assessment of the complainants evidence and also challenges the
    adequacy of the reasons for judgment.

[5]

In our view, the appeal turns primarily on the emphasized portion of the
    following extract from the trial judges reasons. This extract appears at the outset
    of the trial judges analysis of the charges involving the complainant, L.J.,
    which were the first set of charges he analyzed:

The defence called [J.G.] as a witness, and it was her opinion
    that the complaints by [L.J.] and [L.H.] stemmed from their desire to seek
    attention. Implicit in this evidence is that the allegations are untrue.

This court had the opportunity to see first hand these two
    witnesses as they testified. Both had great difficulty recounting their
    complaints, especially [L.H.], who at times seemed to be emotionally paralyzed
    by the ordeal.

All three complainants had to testify about a family member,
which
    in my view makes their allegations more credible than a complaint against a
    non-family member
. Sexual allegations in a family context are explosive
    and threaten to destroy the entire fabric of the relationship. Such complaints
    often divide families, and that is what happened in this case. [Emphasis
    added.]

[6]

The appellant submits that the impugned passage reflects an improper
    approach to the assessment of the complainants credibility, as it relies on
    the complainants relationship to the appellant as a general factor supporting
    their credibility. The Crown responds that the impugned passage must be read in
    context. According to the Crown, when that is done, the passage reflects
    nothing more than an experienced trial judge commenting on the lack of motive
    to fabricate, rather than a statement of a general principle.

[7]

Although we agree that the passage must be read in context, we are
    unable to accept the Crowns submission.

[8]

We begin by noting that it was unnecessary for the trial judge to
    formulate a response to J.G.s evidence, because J.G.s bare opinion about
    whether any of the complainants had a motive to lie was inadmissible and
    therefore irrelevant to the issues before the court.

[9]

More importantly however, on its face, the impugned passage expresses
    the view that, because of the difficulties in family relationships that sexual
    allegations often create, allegations of sexual misconduct made against a
    family member are inherently more credible than allegations of sexual
    misconduct made against a non-family member.

[10]

As
    such, the passage establishes a starting point  or analytical framework  for
    assessing the credibility of the complainants allegations premised on the
    notion that, because of the family context in which the allegations were made,
    they were
more credible
than similar allegations made against a
    non-family member would be. Such an approach is clearly improper and, standing
    alone, requires that we set aside the convictions and order a new trial.

[11]

In
    reaching this conclusion, we acknowledge that it would have been open to the
    trial judge to consider whether the family relationship and family dynamics particular
    to this case made it difficult for any of the complainants to testify and to
    take that into account in assessing a particular complainants credibility.
[1]


[12]

However,
    that is not what the trial judge said. Instead, after referring to the fact
    that all three complainants had to testify against a family member, he stated
    that allegations of sexual misconduct made in that context are
more
credible than allegations of sexual misconduct made against a non-family
    member. A conviction premised on this analytical framework simply cannot be
    allowed to stand.

[13]

At
    the outset of our reasons, we said this appeal turns primarily on the impugned
    passage. We wish to observe as well that, although the Crowns case at trial
    stood largely unchallenged by defence evidence, there were nonetheless problems
    with the complainants evidence mandating a careful examination of each
    complainants reliability and credibility.

[14]

For
    example, although L.H. maintained that, on one occasion, the appellant had
    touched her leg with his penis from behind her as she climbed some stairs, she
    acknowledged she did not see his penis and was unable to explain why she
    believed that it was the appellants penis that had touched her. In closing
    submissions, the trial Crown effectively acknowledged that this evidence may not
    have been sufficiently reliable to support a conviction for sexual assault (as
    opposed to simple assault). Despite the trial Crowns submissions, the trial
    judge accepted this allegation without comment or explanation.

[15]

As
    another example, there were developments in the allegations of all three
    complainants between their statements to the police and their trial evidence 
    all three complainants remembered additional incidents after giving their
    statements to the police.
[2]
The trial judge referred to and accepted the evidence regarding two of these
    incidents, largely because of the particular complainants demeanour.

[16]

Assuming
    a proper approach to the assessment of each complainants credibility, we agree
    that these problems with the Crowns evidence were matters uniquely for
    determination by the trial judge. We refer to these problems simply to observe
    that this is not a case in which we can overlook deficiencies in the trial
    judges reasons based on the strength of the Crowns case or based on our own
    review of the record.

[17]

Based
    on the foregoing reasons, the appeal is allowed, the convictions are set aside
    and a new trial is ordered.

Released: STG April 3, 2013

S.T.
    Goudge J.A.


Janet Simmons J.A.

M.
    Tulloch J.A.





[1]

We acknowledge that the trial judge did so in relation to
    K.J.s evidence when, in considering the issue of delayed reporting at para. 66
    of his reasons, he referred to the fact that K.J.s cousin did not believe
    K.J.s allegation.



[2]
After their respective police statements, L.J. remembered there had been
    digital penetration during her alleged sexual assault; L.H. remembered the
    appellant had touched her breasts while she was sleeping; K.J. remembered the
    appellant had rubbed up against her while she was sitting on a Sea-Doo.


