



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 s. 276.3 of the
Criminal
    Code
shall continue.  This section of
the Criminal Code
provides:

276.3 (1) No
    person shall publish in any document, or broadcast or transmit in any way, any
  of the following:
(a) the contents of an application made
  under section 276.1;
(b) any evidence taken, the information
    given and the representations made at an application under section 276.1
    or at a hearing under section 276.2;
(c) the decision of a judge or justice
    under subsection 276.1(4), unless the   judge or justice, after taking   into account the complain­ants right of privacy  and the interests of
    justice, orders that the decision may be published, broadcast or
  transmitted; and
(d) the determination made and the reasons
  provided under section 276.2,         unless
(i) that determination is that evidence is
  admissible, or
(ii) the judge or justice, after taking
    into account the complainants right of privacy and the
    interests of justice, orders that the determination and reasons
    may be published, broadcast or transmitted.
Offence
(2)
    Every person who contravenes subsection (1) is guilty of an offence punishable  on summary conviction; 1992, c. 38, s. 2; 2005, c. 32, s. 13.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Green, 2013 ONCA 74

DATE: 20130206

DOCKET: C53413

Doherty, Simmons and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruce Allen Green

Appellant

Sherri J. Beattie, for the appellant

Scott Latimer, for the respondent

Heard and released orally:  January 28, 2013

On appeal from the conviction entered by Justice W.
    MacPherson of the Superior Court of Justice, dated October 25, 2010 and the
    sentence imposed on October 25, 2010.

ENDORSEMENT

[1]

The appeal turns on the admissibility of the evidence that the
    complainant had on two prior occasions alleged that she had been sexually
    assaulted only to later recant those allegations.  In our view, evidence of the
    allegations/recantations does not engage s. 276.  That evidence does not
    involve evidence of sexual activity.  The admissibility of this evidence turns
    on questions of relevance and the proper application of the collateral fact
    rule.

[2]

We think that the allegations/recantations questions were clearly
    relevant to the credibility of the complainants allegation against the
    appellant.  Nor, in our view, was their relevance such that it could be said
    the evidence had minimal probative value.  The questions were, therefore,
    proper questions to put to the complainant on cross-examination.

[3]

We are also satisfied that the evidence of the recantations, at least to
    the extent that the evidence of the recantations came from the witness, Landry,
    was not collateral and was, therefore, properly the subject of further
    evidence.  According to Landry, the complainant made the recantations to her in
    the very same conversation in which the complainant alleged she had been
    sexually assaulted by the appellant.  The Crown led evidence of that
    conversation to support the allegation against the appellant.  The contents of
    the conversation were not, therefore, collateral.

[4]

Cross-examination of the complainant on the alleged recantations to Ms.
    Landry could have assisted not only in assessing the complainants general
    credibility, but also in assessing the very reliability of her statement to Ms.
    Landry that she had just been sexually assaulted by the appellant.

[5]

The defence could have led evidence from Ms. Landry to contradict the
    complainant if the complainant in cross-examination denied making the
    recantations to Ms. Landry.  On this record, we have no idea what the
    complainants response to those questions would have been.

[6]

We need not decide whether evidence from the appellant to the effect
    that the complainant had recanted the babysitter allegation a few weeks
    earlier could also have been admitted had the complainant denied making the recantation.

[7]

The trial judge properly excluded the evidence of the police officer
    regarding the landlord incident, one of the two incidents that led to the s.
    276 hearing.  The police officers evidence about his investigation and his
    opinion as to the complainants veracity had nothing to do with whether the
    complainant had made an allegation of sexual assault that she subsequently
    recanted.  We stress that it is the combination of the allegation and the
    recantation that make this evidence relevant to the complainants credibility.

[8]

We see no merit in the unreasonable verdict argument.  There was ample
    evidence to support the trial judges finding of guilt.

[9]

We cannot say that the error made with respect to the allegations/recantations
    evidence was harmless in the context of this record.

[10]

The
    appeal must be allowed, the conviction quashed and a new trial ordered.

Doherty J.A.

Janet Simmons J.A.

M. Tulloch J.A.
