



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. K.S., 2017 ONCA 307

DATE: 20170413

DOCKET: C61976

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

K.S.

Respondent

Benita Wassenaar, for the appellant

Jennifer K. Penman, for the respondent

Heard: March 28, 2017

On appeal from the acquittal entered by Justice Susan J.
    Woodley of the Superior Court of Justice on March 11, 2016, sitting without a
    jury.

By the Court:

[1]

K.S. was found not guilty of four counts
    of sexual offences after a trial before a judge of the Superior Court of Justice
    sitting without a jury. Each count involved the same complainant, the five-year-old
    daughter of a woman with whom K.S. had a rocky relationship.

[2]

The complainant disclosed
    instances of sexual abuse by K.S. around the same time as her mother determined
    that she would end her relationship with K.S. The disclosure emerged in
    response to a direct leading question of K.S. by her mother. The following day,
    the complainant provided a videotaped statement to police that was tendered at
    trial under s. 715.1 of the
Criminal Code
.

[3]

For all practical purposes, the
    case for the Crown at trial consisted of the complainant's testimony; her
    videotaped statement tendered under s. 715.1; and the evidence of her mother.
    Some forensic evidence was also admitted but it did not provide confirmation of
    any allegations of sexual impropriety.

[4]

The defence advanced, unsupported
    by the testimony of K.S. or any other evidence, was that the events alleged by
    the complainant never took place.

The Grounds of Appeal

[5]

The Crown advances four grounds of
    appeal. She submits that the trial judge erred:

i.

in approaching the complainant's
    testimony in a manner that is inconsistent with the authorities governing the
    evidence of child witnesses;

ii.

in imposing a requirement that the
    complainant remember the events described in her videotaped statement in order
    for the videotape to be admissible under s. 715.1 of the
Criminal
    Code
;

iii.

in relying on information that was
    not part of the trial record in reaching her conclusion on the admissibility of
    the videotapes statement as evidence; and

iv.

in making a finding of fact from
    which there was no evidence.

Discussion

[6]

We do not give effect to any of the grounds of appeal advanced by the
    Crown. As a result, the appeal is dismissed.

[7]

In our approach to this appeal, we remind ourselves that, on appeals
    from an acquittal, the Crown is limited under s. 676(1)(a) of the
Criminal
    Code
to grounds of appeal that involve questions of law alone. We also
    have in mind instructions from the Supreme Court of Canada that we ought to be
    slow to interfere with a judge's handling of the evidence and findings on
    credibility as they generally do not raise questions of law alone:
R. v. J.M.H.
,
    2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24.

Ground #1: Erroneous Approach to Complainant's Evidence

[8]

In our view, a close review of the whole of the trial judge's reasons
    does not support the claim that she failed to apply the proper principles in
    assessing the evidence of the complainant.

[9]

The trial judge's reasons accurately record the principles that govern
    the assessment of the evidence of child witnesses. They reveal the need for a
    common sense approach and disclose no hint that the trial judge considered the
    complainant's evidence inherently unreliable on account of her age. Nothing the
    trial judge said or failed to say after her statement of those principles
    revealed any departure from their teachings in her subsequent analysis.

[10]

The trial judge also reminded herself that this common sense approach to
    the evidence of children does not mean that their evidence is not subject to
    the same standard of proof as the testimony of adult witnesses in criminal
    cases. A verdict of guilt requires a solid foundation whether its evidentiary
    support resides in the testimony of a child, of an adult, or of some
    combination of the two. That a child is the principal or sole support for the Crown's
    case does not lessen the standard of proof required to establish guilt.

[11]

In this case, as the trier of fact, the trial judge was not satisfied
    that the case for the Crown, considered as a whole, carried such convincing
    force that it satisfied the demanding standard of proof required to establish
    guilt in a criminal case. The adequacy of the evidence adduced to discharge the
    burden of satisfying the standard of proof required was for the trial judge to
    determine. Her finding that it was inadequate, untainted by legal error, does
    not raise a question of law, thus is not reviewable on an appeal by the Crown:
J.M.H
.
,
    at para. 39;
R. v. B. (R.G.)
, 2012 MBCA 5, 287 C.C.C. (3d) 463, at
    paras. 34 and 36.

Ground #2: Adoption of the Video Statement under Section 715.1

[12]

The case for the Crown consisted in part, better said in large part, of
    a videotaped statement of the complainant tendered for admission under s. 715.1
    of the
Criminal Code
. For this statement to become evidence at trial,
    the party tendering it as evidence, here the Crown, must establish that the
    complainant adopted the contents of the videotape while giving evidence at
    trial:
R. v. F. (C.C.)
, [1997] 3 S.C.R. 1183, at para. 30.

[13]

The test for adoption is not overly stringent. It does not require that
    the witness have a present recollection of the events discussed and need not
    meet the standard for adoption of a prior inconsistent statement by an adult
    witness:
F. (C.C.)
, at paras. 33, 36, and 40. Under s. 715.1, the
    statement is adopted if the complainant or witness recalls making the statement
    and trying to be truthful at the time the statement was made:
F. (C.C.)
,
    at para. 41.

[14]

The trial judge concluded that the videotaped statement met the
    requirements of s. 715.1 subject to the complainant's adoption of it at trial.
    The Crown says that the judge erred in requiring that the complainant recall
    the events described in the videotape in order to satisfy the adoption
    requirement.

[15]

The trial judge expressed concern about whether the complainant adopted
    the statement, but her concern was directed more to whether the complainant
    remembered making the statement to the officer and whether she was being
    truthful at the time. A fair reading of the reasons does not reveal that the
    judge required that the complainant have a current recollection of the relevant
    events before a finding of adoption could be made.

[16]

In the end, the trial judge's reasons appear to have proceeded on the
    assumption that the complainant had adopted her videotaped statement, even
    though she (the trial judge) may not have reached an affirmative conclusion on
    the issue.

[17]

It is important not to confuse the threshold test for the admissibility of
    the videotape, on the one hand, with the ultimate reliability of the
    complainant's evidence (of which the videotape is part) on the other. We are
    satisfied that the rejection of the complainant's evidence was not contaminated
    by the erroneous exclusion of the videotaped statement. The statement was
    admitted into evidence and considered by the trial judge.

[18]

The trial judge's finding that the Crown had not proven its case beyond
    a reasonable doubt was rooted in her rejection of the complainant's evidence.
    Her reasons for doing so included, but were not limited to:

i.

the complainant's tendency to blend fact and fiction;

ii.

the inconsistencies between the evidence of the complainant and the
    testimony of her mother;

iii.

the responses the complainant made to questions asked in
    cross-examination; and

iv.

the timing and manner in which the disclosure came about.

In this case, these were appropriate considerations.

Ground #3: Reliance on Evidence Not Part of Trial Proceedings

[19]

The Crown contends that the trial judge erred in her decision on whether
    the complainant adopted her videotaped statement by considering evidence that
    was not part of the trial record. The "evidence" consisted of a
    reference in argument to observations made by Crown counsel at the preliminary
    inquiry about the conduct of the complainant when the video was played there
    and the fact that the statement was admitted as evidence at the preliminary
    inquiry.

[20]

It is fundamental that findings of fact made at trial must be grounded
    on evidence properly admissible in those proceedings:
R. v. Smith
,
    2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 61;
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 541. This rule applies whether the
    findings of fact in issue are those essential to determine the admissibility of
    a piece of evidence, or to establish proof of an essential element of an
    offence charged.

[21]

This ground of appeal fails for two reasons. The first relates to the
    source of this information: it is Crown counsel who relied on this information
    in seeking admission of the videotaped statement at trial. It ill lies in the
    mouth of the Crown on appeal to complain about reference to it in the trial
    judge's admissibility determination. The second is that the reference was not
    material to the trial judge's determination of the reliability of the
    complainant's evidence, an issue separate and apart from the admissibility of
    the videotaped statement.

Ground #4: Findings of Fact without an Evidentiary Foundation

[22]

The final ground of appeal alleges that the trial judge made findings of
    fact in the absence of an evidentiary foundation. The complaint focuses on the
    trial judge's inference that the complainant could not separate fact from
    fiction. The trial judge drew this inference from some things the complainant said
    in her videotaped statement.

[23]

The trial judge's inference that the complainant was unable to separate
    fact from fiction was grounded in the evidence adduced at trial. It was an
    inference that the trial judge was entitled to draw. It was a relevant consideration
    for the trial judge to take into account in assessing the credibility of the
    complainant and the reliability of her evidence. That another or other
    inferences were available from the same evidence does not mean that the trial
    judge erred in law in the inference she drew or in the conclusion she reached.

CONCLUSION

[24]

For these reasons, the appeal is dismissed.

Released: April 13, 2017
    ("DW")

"David Watt J.A."

"K. van Rensburg J.A."

"G. Pardu J.A."


