



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.M.,
    2015 ONCA 582

DATE: 20150827

DOCKET: C57329

Feldman, Simmons and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.M.

Appellant

K.M., acting in person

Christine Bartlett-Hughes, for the respondent

Mark Halfyard, appearing as duty counsel

Heard: March 9, 2015

On appeal from the conviction entered on March 1, 2013
    and the sentence imposed on June 20, 2013 by Justice Meredith Donohue of the Superior
    Court of Justice, sitting without a jury.

Juriansz J.A.:

[1]

This in-person appeal came before the Court at the inmate sitting on
    March 9, 2015. The appellant was charged that he sexually assaulted and
    physically assaulted the complainant on April 26, 2010. The complainant is the
    mother of the appellants daughter. At the trial, the complainant testified she
    could not recall the incident that she had described in her statement to the
    police and about which she had testified at the preliminary inquiry. A
voir
    dire
was held and the trial judge allowed the Crowns application to admit
    the complainants testimony at the preliminary inquiry for the truth of its
    contents, but did not admit her statement to the police. The appellant was
    convicted on both charges and sentenced to two years in the penitentiary. He
    appeals the conviction for sexual assault.

[2]

Duty counsel on behalf of the appellant submitted that the trial judge
    committed two errors:

1.

The trial judge used the complainants demeanour while recanting to
    support the appellants guilt, rather than considering the inability to assess
    demeanour at the preliminary inquiry as reducing the weight to be given to the
    hearsay statements.

2.

In concluding that the Crown had proven the case beyond a reasonable
    doubt, the trial judge improperly relied on the complainants demeanour at
    trial when recanting her testimony from the preliminary inquiry.

[3]

At the hearing on March 9, 2015, the panel indicated it was unable to
    assess these arguments without the full trial transcript. The panel instructed that
    the full trial transcript be obtained and the parties file supplemental written
    submissions. The filing of those submissions was completed on July 29, 2015.

(1)

Use of the complainants demeanour while recanting the preliminary
    inquiry testimony

[4]

The trial judge was entitled to consider the demeanour of the
    complainant when assessing her testimony at trial that she could no longer
    recall what happened on April 26, 2010. The trial judge was entitled to consider
    the complainants demeanour at trial in determining whether her professed
    failure to recall stemmed from her stated wish to reconcile with the appellant.
    This was significant because at trial the complainant did not testify the
    events did not transpire as described in her preliminary inquiry testimony.
    Rather, in explaining her inability to recall, she gave evidence that could be
    taken to suggest the incidents occurred. For example, she testified that she
    wanted everybody to put this behind, so we can move, move on from this, that
    when she gave her police statement she spoke about what happened, and that
    the incident was an isolated thing that got blown pretty much out of
    proportion.

[5]

I am not persuaded that the trial judge erred in the way she considered
    the complainants demeanour at trial.

(2)

Reliance on the evidence taken during the
voir dire
in
    determining the ultimate reliability of the complainants preliminary inquiry
    evidence

[6]

In her testimony at the trial proper, the complainant testified that she
    had no recollection of the events. However, during the
voir dire
she
    testified that she had told the truth at the preliminary inquiry. She said she would
    rather have the charges dropped, because [she had] forgiven [the appellant] for
    whats happened. In her analysis, the trial judge relied on the complainants testimony
    she had told the truth at the preliminary inquiry. Duty counsel points out that
    the Crown and the defence did not explicitly agree that the evidence given on
    the
voir dire
should be admitted as part of the evidence of the trial
    and submits that the trial judge erred by relying on evidence given at the
voir
    dire
.

[7]

I do not agree. The transcript makes evident that the parties proceeded
    on the tacit understanding that they intended that the evidence given at the
voir
    dire
would be admitted at trial. It is evident because defence counsel
    made extensive reference to the
voir dire
evidence in his closing
    submissions. In fact, it seems to me that defence counsel, in his
    cross-examination of the complainant at trial, had the complainant adopt her
    evidence given on the
voir dire
. He asked her: the answers youve
    given over the past few days[,] are they the truth? Read in context, it seems
    clear to me that the answers given by the complainant on the
voir dire
were within the ambit of his question. The complainant answered yes.

[8]

The trial judge did not err by proceeding on the basis that defence
    counsel had tacitly agreed the
voir dire
evidence was admissible at
    trial.

Conclusion

[9]

I would dismiss the appeal.

Released: August 27, 2015 (KF)

R.G.
    Juriansz J.A.

I
    agree K. Feldman J.A.

I
    agree Janet Simmons J.A.


