



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    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in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. Barua, 2014 ONCA 34

DATE: 20140117

DOCKET: C55805

Doherty, Strathy and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kamal Barua

Appellant

Erika Chozik, for the appellant

Michael Medeiros, for the respondent

Heard: January 8, 2014

On appeal from the convictions entered by a jury presided
    over by Justice Michael G. Quigley of the Superior Court of Justice on March
    23, 2012 and on appeal from the sentence imposed on July 23, 2012.

By the Court:

[1]

The appellant was convicted by a jury
    of sexual assault and sexual interference.  The trial judge stayed the sexual
    assault charge and imposed a 10-month sentence on the sexual interference charge. 
    The appellant appeals conviction and sentence.  We are satisfied that the
    appeals should be dismissed.

[2]

The complainant, a young boy of 10
    years of age (eight at the time of the alleged offence), testified that the
    appellant, the husband of the woman who babysat the complainant, sexually
    assaulted him while the two were sleeping on a mattress in the bedroom.  The
    complainant alleged that the appellant pulled down his pants, kissed him,
    touched and licked his penis, and humped him.  According to the complainant,
    the assault occurred while the appellants wife and young son were asleep
    nearby on a bed.  The complainant testified that he struggled during the
    assault and that the noise awoke the appellants wife who spoke to him.  She
    did not testify at trial.  The complainant told his mother about the assault
    when she came to pick him up the next day.

[3]

The appellant testified and denied that
    he assaulted the complainant.  The defence claimed that the allegation had been
    fabricated by the complainants mother for reasons which need not be detailed
    here.  It was the position of the defence that the appellants testimony, the
    evidence that the complainants mother had a motive to fabricate the
    allegation, and the very real problems with the reliability of the
    complainants evidence, taken in combination, should leave the jury with at
    least a reasonable doubt.

the conviction appeal

[4]

Counsel for the appellant advanced five grounds on the conviction
    appeal.  We called on the Crown on two of those grounds.  These reasons will
    address those two grounds and the appellants submission that the verdicts were
    unreasonable.

(a)

The Reasonableness of the Verdicts

[5]

Counsel for the appellant contends that the convictions were based
    almost exclusively on the complainants evidence.  She submits that, on any
    reasonable view, the complainants evidence was rife with inconsistencies and
    self-contradictions, incomprehensible in many respects, and nonsensical in
    others.  To make her point, counsel referred the court to one answer given by
    the complainant which suggests that he had difficulty distinguishing dreams
    from reality.

[6]

This courts power to review the reasonableness of a verdict extends to
    jury verdicts even where they are based on credibility assessments.  This court
    must, however, conduct its reasonableness assessment bearing in mind the
    significant advantage enjoyed by the jury when it comes to assessing the
    credibility of witnesses.

[7]

The complainants statement to the police was admitted pursuant to s.
    715.1 of the
Criminal Code, R.S.C. 1985
, c. C-46
.  A relatively brief examination in-chief and a
    lengthy cross-examination followed.  The complainant testified for two days. 
    No doubt, the complainant said different things at different times.  Also, as
    noted by the trial judge, some of the complainants answers were difficult to
    understand.

[8]

A review of the entirety of the evidence, however, shows that the core
    of the complainants allegation against the appellant remained largely intact. 
    We cannot say that no reasonable jury, properly instructed, could have
    convicted the appellant based on the evidence of the complainant.

[9]

In rejecting the claim that the verdicts are unreasonable, we make two
    observations about the evidence.  First, it was common ground that the appellant
    lay down on the mattress where the complainant, a young boy of eight years of
    age, was already asleep.  Apart from the fact that the appellant was married to
    the person babysitting the complainant, there was no connection between the
    two.  There was also apparently an empty couch nearby.  According to the
    complainant, he eventually took refuge on that couch.  Second, the complainant
    made an allegation of sexual misconduct the very next day when his mother
    arrived to pick him up at the appellants home.  Those two facts provide part
    of the context in which the jury had to assess the complainants evidence.  The
    verdicts survive the reasonableness analysis.

(b)

The Instruction on the Evidentiary Use of the Complainants Alleged
    Statement to his Mother

[10]

The
    complainants mother testified on cross-examination that, about a year after
    the alleged assault and just before the preliminary inquiry, the complainant
    told her about additional sexual assaults perpetrated against him by the
    appellant.  These assaults were significantly more serious than those alleged
    in the initial disclosure.  According to the mother, the complainant also told
    her that the appellant had showed him pornographic movies.  The evidence is not
    clear as to when these incidents were alleged to have occurred.

[11]

The
    complainant was not cross-examined about this alleged further disclosure made
    to his mother.  He was cross-examined in more general terms about any
    additional disclosures he made after his initial disclosure.  As we understand
    his evidence, he did not acknowledge making any additional disclosures.

[12]

The
    defence also called a friend of the complainants mother to testify about the
    alleged further disclosure.  According to the mother, this friend had been
    present during that disclosure.  The friend testified that the complainant told
    her about a sexual assault.  According to the friend, however, this
    conversation did not take place in the presence of the complainants mother. 
    Nor, according to the friend, did the complainant provide the details referred
    to in the evidence of the complainants mother.

[13]

The
    defence argued at trial that the complainant had not made the further
    disclosure statement to his mother and that this part of the mothers evidence
    was fabricated.  The defence argued that this fabrication supported the defence
    position that the initial allegation was fabricated by the complainants
    mother.

[14]

It
    is common ground that the alleged statement by the complainant to his mother
    was not admissible for the truth of its contents.  The trial judge made this
    clear to the jury both by way of a mid-trial instruction and in his final
    instructions.

[15]

Counsel
    for the appellant submits, however, that the alleged further disclosure
    statement was admissible, depending on the view the jury took of that statement,
    either to impugn the credibility of the complainant or to support the defence
    position that the mother had fabricated the allegation.  Counsel submits that,
    if the jury believed the mothers testimony that the complainant provided the
    further disclosure, that statement by the complainant was inconsistent with his
    trial testimony and, therefore, could be used to impeach his credibility. 
    Counsel also submits that, if the jury was not satisfied that the further
    disclosure statement was made, that finding would significantly undermine the
    mothers credibility and buttress the defence position that the mother had
    fabricated the initial allegation.  Counsel submits that the trial judge
    erroneously told the jury that the alleged further disclosure statement could
    not assist in assessing the evidence of either the complainant or his mother.

[16]

The
    trial judge told the jury that the mothers evidence of the additional
    disclosure made by the complainant could not be used to assess the
    complainants evidence.  Tested against the abstract rules of evidence, that
    instruction is at least incomplete and arguably wrong.  It could be said that
    the evidence of the complainants further disclosure was inconsistent with his
    testimonial version of the assault.  We stress, however, that the nature,
    extent, and effect of the inconsistency are very difficult to discern on this
    record, especially in the absence of any cross-examination of the complainant
    on the alleged statement.

[17]

Whether
    the instruction caused any prejudice to the appellant is not, however, tested
    solely by reference to the rules of evidence without regard to the
    circumstances of the particular case.  The propriety of the instruction must be
    tested bearing in mind the positions advanced by the parties at the trial and
    the evidence adduced by the parties.

[18]

It
    was not part of the defence position that the complainant had made the alleged
    additional disclosure to his mother.  This is evident from the absence of any
    cross-examination of the complainant on that alleged statement.  Further, any
    suggestion by the defence that the complainant had actually made the further
    disclosure would significantly undercut the defences central position that the
    mother had fabricated the initial allegation, as evinced by her later fabrication
    of a much more serious version of the allegation.

[19]

The
    instruction now urged would not have assisted the defence as advanced at
    trial.  If the jury had been instructed that it could use the statement to
    assess the complainants credibility, the defence ran the risk that the jury
    would find that the further disclosure statement was made, thereby undermining
    the defences allegations against the mother. Also, given the absence of any
    cross-examination of the complainant, it is doubtful that the jury would have
    found the statement of much help in assessing the complainants credibility.

[20]

At
    trial, the defence took the position that the jury should be told that the
    alleged statement to the complainants mother could not be considered by the
    jury in assessing the complainants credibility.  This position, accepted by
    the trial judge, reflects, in our view, an appreciation of the risks to the
    defence position, should the jury find that the statement was made.  The
    defence agreed to an instruction which would eliminate that risk.  In those
    circumstances, the trial judges instruction was appropriate and certainly did
    not prejudice the defence.

[21]

The
    trial judges instructions as to how the jury could use the prior disclosure
    statements when assessing the credibility of the mothers evidence are somewhat
    unclear.  At one point in the instructions, the trial judge told the jury that
    the evidence could not be used to contradict or impeach the credibility of the
    complainants mother.  This instruction was, however, given in the context of
    an instruction that the evidence of the complainants alleged additional
    disclosure to his mother was not admissible for the truth of its contents.  As
    we understand the instruction, the trial judge was telling the jury that it could
    not, in assessing the credibility of the complainants mother, do so on the
    basis that the allegations made in the alleged further disclosure were true. 
    This instruction is correct, although, perhaps, not particularly helpful.  In
    fairness, however, it should be pointed out that the trial judge specifically
    vetted this part of his instruction with counsel.  Both the Crown and the
    defence were content with the instruction.

[22]

Apart
    from the trial judges references to the alleged additional disclosure made by
    the complainant as part of his instructions on out-of-court statements, the
    trial judge also dealt with that evidence in the context of the defence
    theory.  He reminded the jury of the evidence of the complainants mother and
    the conflicting evidence of her friend.  The trial judge also related that part
    of the evidence directly to the defence position, telling the jury:

She [defence counsel] indicated to the court that those
    allegations were disclosed by N. [the complainant] in front of [the mothers
    friend] which [the mothers friend] denies, she says  N.s mother clearly had
    a motive, according to the defence, to at the very least embroider [
sic
]
    what N. had indicated to her, if not engage in outright fabrication.

[23]

We
    are satisfied that the jury understood the potential relevance of the evidence
    of the complainants alleged further disclosure to the credibility of the
    mothers evidence.  The connection was simple and straightforward and put to
    the jury as part of the defence position.  This positioning made sense, as the
    value of the evidence to the defence did not lie in any inconsistency with
    anything else the mother had said, but rather in the claim, supported by the
    friends evidence, that the mother had fabricated her evidence that her son had
    made a further disclosure to her.

(c)

The Instruction as to the Manner in which the Jury Should Approach the
    Evidence of the Complainant

[24]

The
    appellant submitted that the trial judges instruction, read as a whole,
    conveyed to the jury the message that it should test the credibility and the
    reliability of the complainants evidence against a lower standard than was to
    be applied to the assessment of the credibility and the reliability of adult
    witnesses.  We cannot agree that the instruction had that effect.

[25]

The
    complainant was 10 years old when he testified.  There was also one other child
    witness.  The trial judge was obliged to tell the jury that it must take into
    account the age of the complainant and the other child witness in assessing the
    evidence of those witnesses.  Factors which may have a decisive effect on the
    reliability of the evidence of an adult witnessfor example, material
    inconsistencies in details as to time and placemay play a significantly lesser
    role in assessing the reliability of the evidence of a child witness.  That is
    not to say that the childs evidence is subject to a less rigorous standard of
    assessment before it can be accepted in a criminal trial.  Rather, it is to say
    that the assessment of the credibility and the reliability of any witness is to
    be tailored to the individual characteristics of the witness.  Where the
    witness is a young child, age is one of those individual characteristics:
R.
    v. W. (R.)
, [1992] 2 S.C.R. 122, at pp. 133-34.

[26]

The
    trial judge dealt with the assessment of evidence of child witnesses at some
    length in his initial charge.  He directed the jury that it had to bear in mind
    the age of the witness in assessing the reliability of the evidence.  He told
    the jury that child witnesses may not have the same ability as adults to recall
    details or describe events fully.  Consequently, inconsistencies in respect of
    such matters may not be as important in assessing the evidence of a child
    witness.  The trial judge, however, told the jury that his instruction was not
    intended to lower the standard to be applied in assessing the evidence of a
    child:

This does not mean, however, that we should subject the
    testimony of children to a lower level of scrutiny or reliability than we do
    adults.  It would be inappropriate to inadvertently relax the proper level of
    scrutiny to which the evidence of children should be subjected.

[27]

The
    trial judge concluded this part of his initial instruction with the
    admonition:  Use your good common sense.

[28]

In
    response to an objection by counsel for the appellant, the trial judge
    recharged the jury and reiterated his initial instruction that the same
    standard must be applied to assessing the evidence of child witnesses as
    applied to all other witnesses.  The trial judge specifically told the jury
    that he had not intended to suggest that a different standard applied when he
    referred to the complainants apparent confusion on the witness stand.

[29]

Finally,
    in response to a jurys request to see the complainants s. 715.1 videotaped
    statement, the trial judge reminded the jury of the approach it should take in
    assessing the entirety of the complainants evidence:

You do not apply a different standard when you evaluate the
    evidence of N. [the complainant] relative to the standard that is applied to an
    adult witness.  It is true that you must assess his evidence taking into
    account of the fact that he is a child, but you must not subject his evidence
    to a lower level of scrutiny because he is a child.

[30]

The
    trial judge not only repeatedly and correctly instructed the jury as to how it
    should approach the evidence of the complainant because he was a child, he also
    reviewed the complainants evidence in some detail.  In that review, he focused
    on several features of the evidence relied on by the defence at trial and on
    appeal to demonstrate the unreliability of the complainants evidence.

[31]

The
    jury was properly equipped to consider the evidence of the complainant.  It was
    ultimately for the jury to determine whether his evidence was sufficiently
    reliable.

the sentence appeal

[32]

Counsel
    focused on a single argument in support of the sentence appeal in her oral
    submissions.  She contended that the trial judge failed to give adequate weight
    to the appellants personal circumstances when fixing a sentence of 10 months. 
    Counsel stresses the significant adverse effects of the charges and the
    subsequent conviction on the appellants health and his family life.  The
    appellant has been required to live apart from his family as a result of these
    charges.

[33]

The
    trial judge gave detailed reasons for sentence.  He summarized the pertinent
    medical evidence and other circumstances personal to the appellant.  He was
    clearly alive to the various mitigating features presented on behalf of the
    appellant.

[34]

The
    trial judge correctly concluded that a sexual assault on a young victim in the
    circumstances of this case would normally attract a medium to high range
    reformatory sentence even for a first offender.  The trial judge proceeded to
    impose a 10-month sentence.

[35]

The
    length of the sentence imposed reflects the trial judges consideration of the
    appellants personal circumstances and a mitigation of what would otherwise be
    an appropriate sentence to reflect those personal circumstances.  We see no
    error in principle in the sentence imposed.  There is no suggestion that it is
    manifestly excessive.  We cannot interfere with the sentence imposed by the
    trial judge.

[36]

The
    appeal is dismissed.

RELEASED: DD  JAN 17 2014

Doherty J.A.

G.R. Strathy J.A.

G. Pardu J.A.




