



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), (2.1),
(2.2), (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that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in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, 213, 271, 272, 273, 279.01,
279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
offence under this Act, as it read at any time before the day on which this
subparagraph comes into force, if the conduct alleged involves a violation of
the complainants sexual integrity and that conduct would be an offence
referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
offences being dealt with in the same proceeding, at least one of which is an
offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b)     on
application made by the victim, the prosecutor or any such witness, make the
order.

(2.1)
Subject to subsection (2.2), in proceedings in respect of an offence other than
an offence referred to in subsection (1), if the victim is under the age of 18
years, the presiding judge or justice may make an order directing that any
information that could identify the victim shall not be published in any
document or broadcast or transmitted in any way.

(2.2)
In proceedings in respect of an offence other than an offence referred to in
subsection (1), if the victim is under the age of 18 years, the presiding judge
or justice shall

(a)
as soon as feasible, inform the victim of their right to make an application
for the order; and

(b)
on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

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. L.C., 2021 ONCA 848

DATE: 20211125

DOCKET: C67671

Strathy C.J.O., Hourigan and
Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.C.

Appellant

William R. Gilmour, for the appellant

David Friesen, for the respondent

Heard: November 22, 2021

On appeal from the conviction entered on
May 1, 2019, by Justice Erika Chozik of the Superior Court of Justice, sitting
without a jury.



REASONS FOR DECISION



I.        Introduction

[1]

The appellant was charged with sexual
interference and sexual assault. The three complainants, who are sisters, are
the nieces of the appellant. They alleged that the appellant committed the
sexual offences between 1993 and 2000, when they were each between the ages of
four and nine.

[2]

The trial judge found the appellant guilty of
one count of sexual assault and one count of sexual interference. The sexual
assault charge was stayed pursuant to the
Kienapple
principle:
Kienapple
v. R.
, [1975] 1 S.C.R. 729. The trial judge sentenced the appellant to
nine months imprisonment.

[3]

In her reasons for judgment, the trial judge
focused on the issue of collusion. She found that there had been far more
discussion of the details of the allegations between two of the nieces than
either was prepared to admit in their testimony. These discussions gave rise to
a real concern that the similarities of their accounts are the product of
collusion, whether conscious or unconscious.
[1]
The trial judge was thus unable to find beyond a reasonable doubt that the
appellant sexually assaulted or interfered with either of these two nieces.

[4]

Rejecting the appellants evidence as
unreliable and suspect, the trial judge ultimately convicted the appellant of
the offences committed against the third niece. The third niece shared her
memories of the appellants sexual offences via a text to one of her sisters,
before either of her two sisters told her about their experiences with the
appellant. Therefore, the trial judge found that the third nieces memory was
not tainted.

[5]

The appellant appeals his conviction. He does
not take issue with any aspect of the trial or with the trial judges reasons
for judgment.

[6]

The appellants sole ground of appeal is based
upon proposed fresh evidence in the form of two affidavits, submitted by his
sister, who is the aunt of the three complainants. The appellant argues that
the fresh evidence directly contradicts the credibility of the third niece.
Accordingly, he seeks a new trial.

[7]

For the following reasons, we are not persuaded
by the appellants arguments and refuse to admit the fresh evidence.
Consequently, we dismiss the appeal.

II.       Proposed Fresh Evidence

[8]

The appellants sister swore two affidavits: one
dated October 22, 2019 and the second dated November 21, 2020. In her first
affidavit, the appellants sister claimed that the third niece had told her
that she discussed the appellants sexual offences with her two sisters much
earlier than the third niece indicated at trial.

[9]

The facts surrounding the alleged admission of
collusion are as follows. The appellants sister stated that on May 18, 2017,
the day before the appellant was charged, she was working at the family
business and observed a meeting between the three nieces and their father.
After the meeting, the three nieces and their father left the premises and
seemed upset. The appellants sister said she called the third niece later that
evening to ask if she was all right. The third niece shared that there were
serious allegations about a member of the family and the appellants sister
guessed that the member of the family was the appellant.

[10]

The appellants sister swore that she spoke with
the third niece again on May 19, 2017. According to the appellants sister, the
third niece told her that two to three weeks earlier, the three complainants
had spent the evening together drinking wine and had discussed the appellants
sexual offences. Finally, the appellants sister said that she did not offer
this evidence earlier because she was not aware that collusion between the
three sisters was a relevant issue until she read the trial judges reasons for
decision.

[11]

In her second affidavit, dated some thirteen
months after the first, the appellants sister submitted additional evidence,
claiming that we kind of rushed the [first] affidavit and that the purpose of
the second affidavit was to fill in the blanks. According to the appellants
sister, the third niece told her on May 19, 2017 that she couldnt remember
anything about the appellants sexual offences. The appellants sister then
asked the third niece why, if she couldnt remember anything, she wanted to
put [the appellant] in jail.

[12]

The appellant argues that his sisters fresh
evidence directly calls into question the third nieces credibility on a key
issue of evidence  that is, the existence of collusion between the third niece
and her two sisters. In essence, the appellant submits that the conversation
that the three nieces allegedly had over wine, two to three weeks before police
charged him, tainted the third nieces memory.

III.      Analysis

[13]

This court has broad discretion to receive fresh
evidence on appeal where it considers it in the interests of justice:
Criminal
Code
, R.S.C. 1985, c. C-46, s. 683(1). The Supreme Court of Canada
established the test that governs the admission of fresh evidence in
Palmer
v. The Queen
, [1980] 1 S.C.R. 759, at p. 775. This court has since
reformulated the
Palmer
test:
R. v. Truscott
, 2007 ONCA 575,
225 C.C.C. (3d) 321, at para. 92. The inquiry consists of three questions:

1.

Is the evidence admissible under the operative rules of evidence?
(admissibility criterion)

2.

Is the evidence sufficiently cogent in that it
could reasonably be expected to have affected the verdict? (cogency criterion)

3.

What is the explanation offered for the failure
to adduce the evidence at trial and should that explanation affect the
admissibility of the evidence? (due diligence criterion)

[14]

The appellant submits the fresh evidence to
demonstrate that the third niece, a Crown witness, made a prior inconsistent
statement. The respondent concedes that the proposed fresh evidence meets the
admissibility criterion.

[15]

The cogency criterion consists of three prongs:
Truscott
,
at para. 99. In considering cogency, this court asks the following questions:

1.

Is the evidence relevant in that it bears upon a
decisive or potentially decisive issue at trial?

2.

Is the evidence credible in that it is
reasonably capable of belief?

3.

Is the evidence sufficiently probative that it
could reasonably, when taken with the other evidence adduced at trial, be
expected to have affected the result?

[16]

As the respondent acknowledges, the adduced
evidence is relevant because it bears on the decisive issue of the third
nieces credibility. The trial judges finding that the third niece was
credible was central to the ultimate conviction of the appellant.

[17]

In our view, the proposed fresh evidence is not
credible for the following reasons. First, the appellants sister was less than
forthright in her affidavits. During her cross-examination, she declared that
she was able to submit her second affidavit over a year after the first
affidavit because she had a very good memory. Yet she failed, in either
affidavit, to mention a text message that she had sent to the three
complainants on May 19, 2017, when the three nieces were at the police station.
In that text, the appellants sister pleaded with the nieces to not go to the
police, since putting [the appellant] in jail is not going to change anything
and when my mom finds out and if he goes to jail, she will die.

[18]

In addition, the appellants sister refused to
admit the extent of her knowledge of the allegations against the appellant. In
cross-examination, she denied that she knew anything about the nature of the
complainants allegations against the appellant. Yet in her May 19, 2017 text
message to the complainants, she seemed to appreciate that the appellant had
committed a wrong and might go to jail and suggested that the involved family
members seek help from a psychiatrist.

[19]

Further, despite her professed neutrality, we
find that the appellant sisters evidence was tainted by her evident desire to
keep her brother out of jail. During cross-examination, she declared that she
still did not believe that the appellant ought to go to jail. She also agreed,
when questioned, that she disbelieved the complainants and believed the
appellant without knowing any information. Clearly, the appellants sister
was an interested and partial affiant.  For these reasons, we conclude that the
appellant has not met his onus to establish that the fresh evidence is
credible.

[20]

Finally on the credibility point, it should be
noted that in addition to her testimony on collusion, the appellants sister
testified in her second affidavit that the third niece stated that she had no
memory of the appellants sexual offences. It is difficult to believe that the
appellants sister would not have appreciated the significance of this admission
when it was provided to her. The appellants sister has offered no credible
explanation as to why she did not immediately bring the third nieces alleged
admission to the attention of defence counsel or her brother.

[21]

In addition, we are also not persuaded that the
fresh evidence is sufficiently probative. The key piece of evidence upon which
the trial judge relied was the text conversation between the third niece and
one of her sisters. In that conversation, the third niece described how the
appellant would sit her on his lap and engage in dry humping. The trial judge
reasonably concluded that the text conversation was the first occasion on which
the third niece described her experiences to her sister and that her evidence
was untainted by collusion.

[22]

In contrast, the appellant sisters claims
beggar belief. If her central claim  that the three nieces colluded by
discussing the appellants sexual offences at a conversation over wine  is
taken as true, then the only logical conclusion is that the three complainants
anticipated that collusion would become an issue at trial. The third niece
would have had to fabricate a narrative in her text conversation with her
sister in the hopes that the trial court would see her evidence as reliable and
untainted.

[23]

Such conclusions are implausible, and we see no
basis to interfere with the trial judges conclusion that the third niece was a
credible and reliable witness. Her text conversation with her sister was a
critical piece of evidence, and nothing in the appellant sisters affidavits
successfully contradicts that evidence.

[24]

In conclusion, we refuse to admit the proposed
fresh evidence and consequently dismiss the appeal.

G.R. Strathy C.J.O.

C.W. Hourigan J.A.

David M. Paciocco J.A.





[1]
In
R. v. C.G
.
, 2021 ONCA 809, at
paras. 28-32, Nordheimer J.A.
explained the analytical difference
between conscious or advertent collusion, on the one hand, and
unconscious or inadvertent collusion, on the other. Specifically,
advertent collusion is a form of conspiracy between witnesses that undermines
their credibility. In contrast, inadvertent collusion caused by innocent
exposure to anothers version of events undermines the reliability of a
witnesss evidence by confusing their memory. He recommended that since the
word collusion connotes conspiracy, it is preferable to refer to inadvertent
tainting.



