



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C.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    shall not be published in any document or broadcast or transmitted in any way.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. C.K.-D, 2016 ONCA 66

DATE: 20160125

DOCKET: C59503

Sharpe, Hourigan and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C. K.-D.

Appellant

C. K.-D., in person

Lou Strezos, duty counsel

Michael Bernstein, for the respondent

Heard: October 7, 2015

On appeal from the conviction entered on March 25, 2014
    by Justice Catherine D. Aitken of the Superior Court of Justice, sitting with a
    jury, and from the sentence imposed on October 23, 2014, with reasons reported
    at 2014 ONSC 5509.

Hourigan J.A.:

A.

Overview

[1]

The appellant was convicted following a jury trial of one count of
    sexual interference and one count of sexual assault. He received a sentence of
    six months incarceration followed by two years probation on the sexual
    interference count. The sexual assault conviction was stayed pursuant to the
    rule in
R. v. Kienapple
, [1975] 1 S.C.R. 729.

[2]

The appellant appeals his conviction, arguing that the trial judge erred
    in her instruction to the jury regarding how they should assess the credibility
    of the complainant, A.Y. Specifically, he submits that the trial judge erred by
    suggesting to the jury that they should assess A.Y.s testimony as if she was a
    12 year old witness and not a 17 year old witness. The appellant also seeks
    leave to appeal sentence.

[3]

For the reasons that follow, I would allow the appeal, set aside the
    convictions and conditional stay, and order a new trial.

B.

Background Facts

[4]

A.Y. was 12 years old in 2009, and lived with her mother in Buffalo, New
    York. She spent the summer vacation that year with her father who lived in
    Hamilton, Ontario. In early July, she travelled with her father to Ottawa,
    Ontario for his wedding.

[5]

On the afternoon of July 5, 2009, A.Y.s father, his new wife, and his wifes
    sister attended a church service. A.Y. remained behind at the sisters residence
    with the appellant and her new step-brother. The appellant was the sisters
    son, and 21 years old at the time.

[6]

A.Y. testified that while she was in the bedroom watching television, the
    appellant came into the room. He pinned her down, pulled down her pants and
    underwear, and kissed her vagina. She told him to stop. He then pulled up A.Y.s
    shirt and bra and kissed her breasts. He also kissed her lips. He then left to
    go to the bathroom. Later, he told A.Y. not to tell anyone what had happened.

[7]

A.Y. testified that she called her fathers mobile phone immediately after
    the alleged assault, but that she could not reach him. A.Ys father testified
    that his mobile phone was on silent mode during the church service and that he did
    not answer at first, but after a few missed calls he went outside and spoke
    with A.Y. on the phone. He testified that during that call A.Y. asked him when
    he was coming home, but did not make any disclosure about the alleged assault. Nothing
    was said about the alleged assault for the next 10 months.

[8]

In May 2010, A.Y. sent an email to her father describing what had
    happened. In the email, she said that the appellant had come back to the room
    and kissed her again after leaving to go to the bathroom. This differed from
    her video evidence in chief at trial, in which she said he did not come back.
    On cross-examination, she stated that the version of the assault described in
    her email to her father was correct.

[9]

At the time of trial A.Y. was 17 years old. The appellant did not
    testify.

C.

Issues

[10]

This
    appeal raises the following issues:

1)

Did the trial judge
    err in her instruction to the jury regarding the assessment of A.Y.s
    credibility?

2)

Was the sentence
    imposed unfit?

D.

Analysis

[11]

On
    Friday, March 21, 2014, the trial judge began instructing the jury. On that day
    she only read out a portion of her charge, a draft of which she had provided to
    counsel in advance via email. The areas covered in this part of the charge
    included the duties of jurors, general legal principles, and an instruction
    regarding evidence, which contained a section on the evidence of child
    witnesses that read in part as follows:

Next, in regard to the evidence of children. The Supreme Court
    has provided some direction as to how evidence regarding events that happened
    when a witness was a child should be assessed. Every person giving testimony in
    court of whatever age is an individual whose credibility and evidence must be
    assessed by reference to criteria appropriate to his or her mental development,
    understanding and ability to communicate. For example, as a general rule, when
    an adult is testifying as to events which occurred when she was a child, her
    credibility should be assessed according to criteria applicable to her as an
    adult witness. However, with regard to her evidence pertaining to events which
    occurred in childhood, the presence of inconsistencies, particularly as to
    peripheral matters such as time, location, and the exact order of events, should
    be considered in the context of the age that she was at the time of the events
    to which she was testifying. In this case, A is now 17 years of age. She
    testified about events that occurred when she was 12 years of age. So in terms
    of her evidence pertaining to the events, it is the memory of a 12 year old
    that you are really considering. Since children may experience the world
    differently from adults, it is hardly surprising that details important to
    adults like time and place, may be missing from their recollection. For this
    reason, a flaw such as contradiction in a witnesses testimony regarding events
    that happened in childhood may not warrant the same effect as a similar flaw in
    the testimony of an adult witness testifying about events that occurred in adulthood.
    The credibility of every witness who testifies before the courts, and
    reliability of their evidence must of course be carefully assessed but assessed
    using common sense that takes into account the age of the witness when the
    alleged events occurred and the age of the witness when testifying. This does
    not change the onus on the Crown to prove all essential elements of an offence
    beyond a reasonable doubt.

[12]

At
    5:15 p.m. that day the trial judge provided counsel via email with a draft copy
    of what was identified as a revised jury charge. This draft included the
    second part of the jury charge, which the trial judge proposed to read to the
    jury on Monday, March 24, 2014.

[13]

On
    Sunday, March 23, 2014 at 2:40 p.m. defence counsel sent an email to the trial
    judge regarding the revised charge, stating:

In the section Evidence of Children, at page 13, paragraph 1, I
    noticed you added the following sentence to this version of the charge, which
    was not in your previous draft. Indeed, you read this to the jury on Friday:
    So, in terms of her memory of the actual events, it is the memory of a 12-year
    old that you are considering.

I think that it would be more accurate to say that it is the
    memory of a 17-year old, regarding the events she says happened to her when she
    was 12, that you are considering.

[14]

On
    the morning of Monday, March 24, 2014, the following exchange occurred between
    the trial judge and defence counsel in the absence of the jury regarding the
    instruction on the evidence of children:

THE COURT:        In terms of the issue about the memory, I had
    intended to say that we are talking about the memory of a twelve-year old,
    because it was when she was 12 that the memory was created. Her appreciation of
    what happened was created when she was 12. She later recounts it when she is 17
    but it was for that reason that I worded it that.

MR. GILBERT:      Yes, Ms. Dufort and I discussed it, and I
    think Ms. Dufort expressed more or less in the terms that Your Honour did and
    in the end it was probably, but when I think about it again, maybe a bit
    semantic. Maybe sometimes lawyers dont have  when we have an opportunity to
    get nit-picky for a change we do, not to say that that was the reason, but yes,
    I think most people would know what you meant by that and I think so.

THE COURT:        What was meant by that, yes.

MR. GILBERT:      Yes, so its not a ...

THE COURT:        Basically Im saying the memory was created
    when she was 12.

MR. GILBERT:      Yes.

[15]

The
    trial judge made no correcting instruction in regard to her charge on the
    evidence of children.

[16]

The
    appellant submits that the trial judge erred by telling the jury that it is
    the memory of a 12 year old that you are really considering. According to the
    appellant, this instruction suggested to the jury that A.Y.s credibility
    should be assessed in accordance with the criteria applicable to a 12 year old
    and not a 17 year old. The Crown submits that the trial judge did not err and
    that it would have been clear to the jury in context of the charge as a whole
    that all that the trial judge was saying was that A.Y.s memories were formed
    when she was 12 years old.

[17]

This
    courts decision in
R. v. A.M
.,
2014 ONCA 769, 123 O.R. (3d)
    536, is instructive on this issue. In that case, the appellant was convicted of
    sexual assault and sexual interference. The complainant was 19 years old when
    she testified at trial regarding a series of sexual assaults that occurred from
    the time she was approximately seven years old to the age of 17. The court stated,
    at para. 10, that there are no inflexible rules regarding when a witness
    evidence should be evaluated according to adult or child standards. The
    court also noted that the
Canada Evidence Act
, R.S.C. 1985, c. C-5,

makes no reference to adult or child witnesses, but refers only to
    witnesses who are 14 years or older and under 14 years of age.

[18]

In
A.M.
the court also stated, at para. 11, the following regarding the
    credibility assessment of an adult witness testifying about events that
    occurred when she was a child:

Generally, where an adult testifies about events that occurred
    when she was a child, her credibility should be assessed according to the
    criteria applicable to adult witnesses. However, the presence of
    inconsistencies, especially on peripheral matters such as time and location,
    should be considered in the context of her age at the time the events about
    which she is testifying occurred. [Citations omitted.]

[19]

The
    court went on to find that the trial judge erred when he assessed the
    complainants evidence as if she was a child and held, at para. 25, that:

The trial judge was obliged to assess her credibility according
    to the criteria applicable to adult witnesses, not the somewhat lessened
    standard of scrutiny associated with child witnesses. While the trial judge
    was entitled to apply a less exacting standard to peripheral matters that
    occurred during the complainants childhood, he erred in assessing the
    complainants credibility as if she were testifying as a child. [Citations
    omitted.]

[20]

As
    a consequence of this and another error committed by the trial judge, the
    appeal was allowed and a new trial was directed.

[21]

The
    question in the present case is whether the trial judges statement it is the
    memory of a 12 year old that you are really considering meant, or could be
    taken to mean, that the jury should assess A.Y.s credibility on non-peripheral
    matters as if she were 12 years old. If that is the case, then the trial judge
    erred in law.

[22]

It
    is not the function of this court to examine isolated statements in a jury
    charge free from their context to determine whether the charge serves its
    purpose. The focus of appellate review of jury charges is whether, after a
    functional and contextual review of the charge and of the trial as a whole, the
    jury instructions adequately prepared the jury for deliberations:
R. v.
    Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39.

[23]

The
    context of the instruction in this case is important. At trial, the defence
    sought to discredit A.Y. by highlighting discrepancies between her description
    of the events surrounding the alleged assault and her fathers recollection of
    those events. The defence also focussed on the discrepancy between A.Y.s
    description of the alleged assault and what she later described to her father
    in her email. In both prongs of attack, A.Y.s credibility was critical. This
    is not surprising as the Crowns case was unsupported by any physical evidence
    or other eyewitness testimony. In short, A.Y.s credibility was central to the
    case.

[24]

With
    that context in mind, I turn to the impugned statement in the charge. The trial
    judge may well have only meant to convey that A.Y. formed her memory of the
    assault when she was 12 years old. It is also arguable that the sentence read
    in context was meant to be limited to peripheral matters. However, the
    difficulty with these arguments is that the trial judge made an unqualified
    statement that when considering the events the jury should be aware that it
    is the memory of a 12 year old that you are really considering.

[25]

In
    my view, this statement could be interpreted to mean that the jury was obliged
    to assess A.Y.s credibility as if she was 12 years old. At the very least, the
    statement, in the context of what was otherwise a correct instruction, would
    have been a source of confusion for the jury on the critical issue in the
    trial, being the assessment of A.Y.s credibility.

[26]

I
    would conclude that the trial judge erred in law in her instruction to the
    jury. Given the centrality of the error to the jurys analysis, the conviction
    cannot stand.

E.

Disposition

[27]

I
    would set aside the convictions and the conditional stay and order a new trial
    on the counts of sexual assault and sexual interference. Given this conclusion,
    it is unnecessary to consider the appellants motion for leave to appeal his
    sentence.

C.
    W. Hourigan J.A.

I
    agree Robert J. Sharpe J.A.

Benotto J.A. (dissenting):

[28]

I
    have read the reasons of Hourigan J.A. I do not agree that the impugned
    sentence in an otherwise correct charge would have led the jury to assess the
    complainants testimony about non-peripheral events with a lower standard of
    scrutiny. Nor do I agree it would have been a source of confusion for the jury.

[29]

The
    impugned sentence cannot be viewed in isolation. The instructions before and
    after the impugned sentence, and the charge as a whole, made the jurys task
    clear. I do not agree that the jury could have been misled. Moreover, even if
    the impugned sentence  viewed in isolation  did not accurately reflect the
    law, I do not agree that it could have led to a miscarriage of justice.

The Jury Charge

[30]

As
    stated by Hourigan J.A., it is not the function of this court to examine
    isolated statements in a jury charge free from their context to determine
    whether the charge serves its purpose. As I read the impugned sentence in
    context, the charge served its purpose.

[31]

The
    impugned sentence was in the section of the jury charge on witnesses testifying
    about childhood events. The surrounding comments in the charge were significant
    and effectively removed any confusion that may have arisen from the impugned
    sentence.

[32]

Shortly
    before the impugned sentence, the trial judge correctly addressed how the jury
    should assess the complainants credibility:

[A]s a general rule, when an adult is testifying as to events
    which occurred when she was a child, her credibility should be assessed
    according to criteria applicable to her as an adult witness.

[33]

Then,
    the trial judge specifically identified that, in matters peripheral to the
    assault, inconsistencies should be considered in the context of the witnesss
    age when the events occurred:

[W]ith regard to her evidence pertaining to events which
    occurred in childhood, the presence of inconsistences, particularly as to
    peripheral matters such as time, location, and the exact order of events,
    should be considered in the context of the age that she was at the time of the
    events to which she is testifying.

[34]

At
    this point the trial judge said the impugned sentence: [s]o in terms of her
    evidence pertaining to the events, it is the memory of a 12 year old that you
    are really considering.

[35]

The
    next sentence in the charge was a reference to the types of
peripheral
events that can be assessed differently by the jury:

Since children may experience the world differently from
    adults, it is hardly surprising that details important to adults like time and
    place, may be missing from their recollection.

[36]

As
    I read this passage, the jury would have understood that the word events in
    the impugned sentence was a reference to peripheral events.

[37]

On
    this basis, the trial judge was not instructing the jury to apply a lower level
    of scrutiny to the complainants credibility on non-peripheral events. Nowhere
    did the trial judge say that the jury should consider the credibility of a
    12-year-old for non-peripheral events. In fact, the opposite was explicitly
    stated prior to the impugned sentence.

[38]

The
    balance of the jury charge addressed the assessment of witness credibility.
    There was really only one issue for the jury: to determine if the evidence
    proved beyond a reasonable doubt that the complainant was sexually assaulted as
    alleged. This non-peripheral issue did not involve differing versions of the
    same event. The appellant, as was his right, did not testify.

[39]

The
    trial judge repeatedly cautioned the jury about the need to carefully assess
    the evidence and to be satisfied of the appellants guilt beyond a reasonable
    doubt.

[40]

The
    jury was instructed to consider the evidence with a common sense approach. The
    trial judge said this:

When you are considering whether the evidence of a witness
    rings true, you must consider who the witness is, what his or [her] life
    experiences have been, how he or she approaches life, what is important to that
    person, how he or she likely would have reacted to events. In other words, put
    yourself into that persons shoes at the moment in question and in light of
    that persons capabilities, beliefs and experiences. It is in that context that
    you consider whether the witnesss evidence rings true.

[41]

And
    later:

The credibility of every witness who testifies before the
    courts, and the reliability of their evidence must of course be carefully
    assessed but assessed using common sense that takes into account the age of the
    witness when the alleged events occurred and the age of the witness when
    testifying. This does not change the onus on the Crown to prove all essential
    elements of an offence beyond a reasonable doubt.

[42]

This
    common sense reference by the trial judge is consistent with recent
    developments with respect to the credibility assessment of young persons. The
    rules regarding the assessment of credibility of an adult versus a child
    are not inflexible: see
R. v. A.M
., 2014 ONCA 769, 123 O.R. (3d) 536, at
    para. 10, where this court said:

An inflexible, category-based system would resurrect
    stereotypes as rigid and unyielding as those rejected by the recent
    developments in our approach to childrens evidence.

[43]

A
    category-based assessment of the credibility assessment of a young person
    particularly in the context of a sexual assault allegation  should be
    avoided. The complainant here was 17 years old when she testified. What is the
    standard to be applied to a 17-year-old? What is the standard for a
    12-year-old? These questions require the court to adopt a flexible, common
    sense approach.  This was  proposed by Wilson J. in
R. v. B.(G)
, [1990]
    2 S.C.R. 30, at 55:

While children may not be able to recount precise details and
    communicate the when and where of an event with exactitude, this does not mean
    that they have misconceived what happened to them and who did it.

[44]

In
    this case, the jury charge fairly described the approach that the jury should
    take to the credibility assessment of the complainant.

Miscarriage of Justice

[45]

If
    I am wrong about my reading of the jury charge, I still do not agree that the
    purported error could have led to a miscarriage of justice.

[46]

The
    appellant alleges that there are four inconsistencies which would have impacted
    on the credibility of the complainant if she were assessed as an adult.
    Significantly, of the four inconsistencies, two relate to differences between
    her evidence and her fathers  both of which are on peripheral issues:

·

The complainant testified that she was not asked to attend the
    church service, while her father said she chose to stay behind to watch
    television.

·

The complainant testified that she attempted to call her father
    three times while he was at church but that he did not answer. The fathers
    evidence was that he stepped outside after several calls to take the call.

[47]

The
    third alleged inconsistency relates to the complainants evidence that she
    called her father intending to tell him what had happened but did not do so. In
    my view, this is not an inconsistency at all. There is no standard response to
    a sexual assault. That a 12-year-old would call her father and then later not
    tell him does not impact her credibility.

[48]

The
    fourth inconsistency relied upon is the e-mail the complainant sent to her
    father. It differed from her statement to the police, which she adopted at
    trial. In the statement to the police she said the appellant went to the
    bathroom and then did not resume the assault. In her e-mail to her father she said
    he did.

[49]

This
    inconsistency did not relate to the complainants evidence dealing with the
    substance of the assault. On that she did not waiver. Further, the jury was
    reminded about this inconsistency in the trial judges charge. They were also
    reminded about the defence position that the allegations arose against the
    backdrop of the acrimonious divorce of her parents and the complainants
    displeasure at her fathers remarriage.

[50]

The
    impugned sentence in the trial judges charge referred to the memory of a
    12-year-old. In regard to what she said happened to her, her memory never
    changed. Her disclosure to her parents, her statement to the police and her
    evidence at trial were consistent that the appellant pulled down her pants and
    sexually assaulted her.

[51]

Therefore,
    whether the jury was assessing the memory of a 12-year-old or a 17-year-old
    was of no moment. Her memory of the non-peripheral events did not change and
    there were no material inconsistencies. Accordingly, even if the trial judge
    erred, the error did not result in a miscarriage of justice.

Sentence Appeal

[52]

The
    trial judge imposed a sentence of 6 months incarceration, followed by 2 years
    probation. Her reasons considered the aggravating and mitigating factors and
    her conclusion was within the applicable range. I see no error in principle and
    would not grant leave to appeal.

Disposition

[53]

I
    would dismiss the appeal as to conviction and sentence.

Released: January 25, 2016  RJS

M.L.
    Benotto J.A.


