



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a
    young person who has received an adult sentence;

(b) in a case where the information relates to a
    young person who has received a youth sentence for a violent offence and the
    youth justice court has ordered a lifting of the publication ban under
    subsection 75(2); and

(c) in a case where the publication of the
    information is made in the course of the administration of justice, if it is
    not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in subsection (1) may,
    after he or she attains the age of eighteen years, publish or cause to be
    published information that would identify him or her as having been dealt with
    under this Act or the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985, provided that he or she is not in custody pursuant to
    either Act at the time of the publication.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.H., 2019 ONCA 101

DATE: 20190211

DOCKET: C63018

Sharpe, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.H.

Applicant/Appellant

Catriona Verner, for the appellant

Joe Hanna, for the respondent

Heard and released orally: February 6, 2019

On appeal from the conviction entered on August 29, 2016
    by Justice Wolfram Tausendfreund of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of
    rape and two counts of incest against his two sisters. He was sentenced as a
    youth to two years in custody and appeals from his convictions.

[2]

D.H. and J.W. alleged in 2012 that they were
    sexually abused by multiple individuals, one of whom was their brother. The
    events began in the 1970s and continued for about 5 years. The appellant was
    between 12 to 17 years old, and both complainants were 10 to 16 years old.

[3]

D.H. testified that the appellant would have
    sexual intercourse with her, eight to ten times a month. J.W. testified that
    the appellant would have intercourse with her two to three times a week in the
    appellants bedroom. J.W. said that when she refused to participate, the
    appellant physically beat her until she submitted.

[4]

The appellant moved out of the parental home in
    the fall of 1980. No other family members were aware of the abuse. J.W. said
    that she did not know that her sister D.H. had also been sexually abused by the
    appellant until she spoke to her mother about the subject in 1993. Her mother
    told her that D.H. had disclosed the sexual abuse to her. J.W. said that she
    too had been abused by the appellant. The complainants continued to have
    interaction with the appellant until disclosing the abuse to the police in
    December 2012.

[5]

Both complainants also indicated that they were
    sexually abused by several others including their father and maternal
    grandfather. The defense called expert evidence on the issue of transference,
    alleging that the complainants had transferred the memory of third party
    abusers on to the appellant.

[6]

On a s. 276 application, the trial judge
    permitted defence counsel to cross-examine J.W. and D.H. with respect to their
    father and grandfather but not with respect to other alleged assailants.

[7]

The appellant alleges that the trial judge erred
    by limiting the s. 276 application; by misapprehending the evidence on memory
    transference; by relying on similar fact evidence; and by rendering an
    unreasonable verdict.

[8]

The appellant submits that the s. 276 ruling by
    the trial judge with respect to the complainants allegations against persons
    other than the father and grandfather should have been allowed for two reasons:
    (i) it was relevant to the allegation of transference; and (ii) it unduly limited
    cross-examination of the complainants. The appellant submits that following
    DHs testimony that she had made a mistake about the age that the appellant
    began abusing her, confusing it with the abuse of others, the trial judge
    should have re-visited his ruling.

[9]

We do not accept this submission. The purpose of
    s. 276 is to guard against the so-called twin myths, that a complainant is more
    likely to have consented or is less worthy of belief. The criteria for
    admissibility of prior sexual activity is that there must be specific instances
    of sexual activity, relevant to an issue at trial with significant probative
    value that it is not outweighed by the danger of prejudice to the proper
    administration of justice.

[10]

With respect to the transference of memories,
    the trial judge did allow cross-examination on the allegations against the
    father and grandfather. The allegations against the others were dissimilar to
    those made against the appellant. They were isolated events that could not
    reasonably be mistaken for the ongoing abuse by a sibling in the family home.
    The allegations that the complainants would have transferred the memory of
    these other events to the appellant is remote. The decision of the trial judge
    to limit the 276 application was reasonable.

[11]

The trial judge was not asked to revisit his
    ruling and it was not an error not to do so.

[12]

We do not agree that the ruling inhibited proper
    cross-examination. The complainants were cross-examined on the inconsistencies
    in their testimony and were questioned about other abusers. It is difficult to
    see what further relevant evidence would have been adduced.

[13]

The appellant further submits that the trial
    judge erred in concluding that there was no evidence of transference because
    one of the complainants said in her police statement and at the preliminary
    inquiry that she was confusing the abuse of another with that of the appellant.
    In fact, the complainant testified that she had made a mistake in her answers
    to the police and at the preliminary inquiry. The trial judge referred to this
    inconsistency and to the evidence of the defence expert on transference. He was
    not prepared to find that either complainant had transposed or confused sexual
    abuse of the appellant with that of other parties. This does not reflect a
    misunderstanding of the evidence.

[14]

The appellant alleged that the trial judge erred
    in relying on the similar fact evidence because the similarities between the
    abuses of the sisters were generic and further he failed to consider the issue
    of collusion before relying on similar fact evidence.

[15]

We do not accept this submission. The trial
    judges reasons, read as a whole, set out the similarities and dissimilarities
    between the evidence of the two complainants. It was therefore open to the
    trial judge to rely on the similar fact evidence particularly in light of the
    fact that the abuse was of his sisters, in the family home which began when
    each turned the same age of ten. Further, the
context
of the alleged behaviour was similar: see
R. v. B.(L)
; (1997) 116 CCC(3d) 481 at para 37;
R. v. J.H
2018 ONCA 245 at para 21; and
R. v. S.C
2018 ONCA 454 at para 26). The trial judge was entitled to rely on the
    similar fact evidence.

[16]

The trial judge rejected the suggestion that the
    complainants colluded with one another before testifying and noted there was no
    evidence of collusion. He accepted the evidence that, although each was aware
    of the abuse of the other, they did not discuss it. The defence did not raise
    the issue of unconscious collusion at trial.

[17]

Finally, we do not agree that the verdict was
    unreasonable. The trial judge addressed the inconsistencies in the
    complainants evidence on direct and cross-examination and the statements to
    the police and the preliminary inquiry. He found that he was nevertheless able to
    accept their evidence. It was not necessary to resolve every inconsistency. He
    reviewed in the evidence of the two complainants, the appellants two ex-wives,
    the appellants older brother, and the appellant himself. He accepted the
    evidence of the ex-wives that the appellant had made inculpatory statement to
    them. There was evidence for him to find the appellant guilty.

[18]

The appeal is dismissed.

Robert
    J. Sharpe J.A.

M.L.
    Benotto J.A.

David
    Brown J.A.


