



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)       REPEALED: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    information that could identify the victim shall not be published in any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. R.D., 2018 ONCA 356

DATE: 20180412

DOCKET: C64235

Doherty, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.D.

Appellant

Alice Barton, for the appellant

Jacob Sone, for the respondent

Heard: April 3, 2018

On appeal from the conviction entered on January 18, 2017
    and the sentence imposed on May 1, 2017 by Justice Susan E. Healey of the Superior
    Court of Justice, sitting without a jury.

By the Court:


I



[1]

The appellant was convicted after a trial by a judge alone of one count
    of sexual assault and one count of sexual interference.  Both counts arose out
    of the same event and the trial judge stayed the conviction on the sexual
    assault charge:
R. v. Kienapple
,
[1975] 1 S.C.R. 729.  The trial judge sentenced the appellant to 15 months in
    custody followed by one year probation.  She also imposed the usual ancillary
    orders.

[2]

The appellant appeals conviction and sentence.


II



[3]

K.M., the complainant, and her mother lived briefly with the appellant
    in January and February 2005.  K.M. was 6 years old.

[4]

In October 2012, when the complainant was just short of her 14th
    birthday, she told her counselor that she had been sexually assaulted on one
    occasion by the appellant.  Charges were laid.  K.M. was 18 years old when she
    testified.

[5]

In her evidence, K.M. described the assault as occurring on a specific
    day when K.M.s mother, at the last minute, asked the appellant to look after
    K.M. for the day.  He initially resisted the request, but later relented and
    agreed to look after K.M.

[6]

K.M. testified that at some point during that day, the appellant told
    her to remove her clothing, rubbed her breasts with his hand, and inserted his
    fingers into K.M.s vagina while he rubbed his penis.  K.M. said she struggled
    to get away, but the appellant pressed her against the bed so she could not
    move.  The assault stopped when the appellant heard a car door slam.  It turned
    out that K.M.s mother had returned home.  The appellant told K.M. to get
    dressed.

[7]

By coincidence, K.M.s mother had decided to terminate her relationship
    with the appellant that day.  She was coming back to the apartment to get K.M.
    and move out.  They left the apartment that afternoon.  K.M. did not see the
    appellant again until these court proceedings many years later.

[8]

In the course of her examination-in-chief, K.M. testified that she first
    complained about the sexual assault when she told her counselor.  K.M. was not
    asked in-chief about the reason for counseling.

[9]

In cross-examination, K.M. was asked about the problems she was having
    that led to the counseling.  She acknowledged that she had many emotional and
    behavioural problems as a teenager, including depression.  She testified that
    those problems manifested themselves in various forms of misbehaviour,
    including self-abuse, difficulties with the law, low-functioning in school, and
    alcohol and drug abuse.  In response to questions on cross-examination, K.M.
    indicated that her emotional and behavioural problems as a teenager were caused
    by the sexual abuse she suffered at the hands of the appellant.  She testified
    that she thought about it a lot and it upset her very much.

[10]

The
    defence solicited evidence about K.M.s behavioural problems as a teenager for
    two reasons.  First, the defence argued that K.M. had invented the allegation
    of sexual abuse as an excuse for her misbehaviour as a teenager.  Second, the
    defence submitted that K.M.s conduct, which included criminality and dishonesty,
    placed her entire credibility in doubt.

[11]

The
    appellant did not testify.  Instead, counsel argued that K.M.s evidence was
    not sufficiently credible and reliable to carry the full weight of the Crowns
    burden.

[12]

In
    the course of argument, the trial judge raised the possibility that K.M.s
    behaviour as a teenager and her explanations for that behaviour could assist in
    determining whether the Crown had proved the allegation beyond a reasonable
    doubt.  The trial judge observed that the behavioural problems exhibited by
    K.M. were known to be associated with persons who had been victims of sexual
    assault.  In the trial judges view, she did not need expert evidence to find
    that the behaviours exhibited by her [K.M.] may arise from being a victim of
    sexual assault.

[13]

We
    agree that the trial judge did not need expert evidence to find that K.M.s conduct
    as a teenager could have been the product of various childhood traumas,
    including sexual abuse. K.M. testified that the two were connected. The trial
    judge was entitled to take into account K.M.s evidence and common knowledge
    when addressing the defence argument that the allegation of sexual abuse was a
    falsehood created by K.M. as an excuse for her misbehaviour as a teenager.  The
    trial judge could, in considering and rejecting the defence position, have
    regard to other possible explanations for K.M.s behaviour, including her
    allegation that she had been sexually assaulted as a young child: see
R. v.
    R.O.
, 2015 ONCA 814, at paras. 40-43.

[14]

The
    trial judge, however, went further and found an actual connection between the
    complainants psychological and emotional problems as a teenager and the
    alleged sexual assault when she was six years of age.  In finding that
    connection, the trial judge relied on K.M.s evidence that she believed her
    subsequent problems to be a result of the earlier sexual abuse, and what the
    trial judge concluded was the absence of any other explanation for K.M.s
    conduct as a young teenager.

[15]

The
    trial judge ultimately found that the connection between the sexual abuse, and K.M.s
    subsequent emotional and psychological problems, provided evidence that
    supported the Crowns case, and enhanced the reliability of K.M.s testimony
    that she had been abused by the appellant.  The trial judge said:

She disclosed the incident when she did for the sole reason
    that she testified to  as she matured, she understood the import of her memory
    that troubled her greatly, she was being asked in counseling about what was
    troubling her and she let it be known. Those memories continue to cause her
    ongoing distress, led to drug and alcohol abuse, and interfered with her
    ability to thrive academically. There is no other explanation for her behaviour
    that makes sense and it goes well beyond the typical adolescent struggles. On
    their own, Ks psychological and behavioural difficulties would not result in a
    conviction in this case, but they are part of the evidence that bolsters the
    reliability of her evidence of being assaulted.

[16]

We
    are satisfied that the trial judge erred in using the evidence of K.M.s
    emotional and psychological problems as a teenager to bolster the reliability
    of her evidence of being assaulted for two reasons.  First, in finding that
    the evidence in respect of her emotional and psychological problems supported
    her claim that she had been assaulted, the trial judge placed significant
    weight on the absence of any other explanation in the evidence for the complainants
    emotional difficulties.  With respect, this weight was misplaced.  The Crown
    never suggested as part of its case that there was any link between the
    complainants emotional and psychological problems and the sexual assault when
    she was six years old.  The possibility of that connection was not explored in
    the evidence.  In fact, the possible connection first appeared in the trial
    judges questions during closing argument.

[17]

On
    this evidentiary record, it was speculation to conclude, as the trial judge
    did, that there was no explanation for K.M.s emotional and psychological
    problems as an adolescent other than the explanation K.M. offered in
    cross-examination.

[18]

Second,
    we accept counsel for the appellants submission that the trial judges
    reasoning reveals a fatal circularity or boot strapping.  The trial judge
    used her acceptance of K.M.s evidence that the sexual assault by the appellant
    precipitated her subsequent emotional and behavioural problems to support the
    reliability of K.M.s assertion that the appellant sexually assaulted her.  In
    effect, the trial judge used her acceptance of K.M.s testimony that the sexual
    assault explained the emotional problems to bolster the reliability of K.M.s
    evidence that she was sexually assaulted.


III



[19]

The
    appellant argued that if the improper use of K.M.s evidence of her emotional
    and psychological problems as a teenager is removed from the evidentiary mix,
    there is no reasonable basis upon which the trial judge could have convicted.  We
    do not agree.  K.M. testified.  A reasonable trier of fact could convict based
    on her evidence.

[20]

We
    would allow the appeal, quash the conviction, set aside the conditional stay,
    and order a new trial on both counts.

Released: APR 12 2018 DD

Doherty J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.


