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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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. S.J., 2017 ONCA 492

DATE: 20170614

DOCKET: C59590

Doherty, Lauwers and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.J.

Appellant

Diana M. Lumba and Marianne Salih, for the appellant

Lisa Joyal, for the respondent

Heard and released orally:  June 9, 2017

On appeal from the conviction entered on May 21, 2014 by
    Justice C. Herold of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault-related charges involving
    his daughter and stepdaughter.  He was acquitted on some of the charges
    involving his daughter.  There are four grounds of appeal.

I

Did the trial judge err in dismissing the severance motion?

[2]

The defence applied for severance at the outset of the case.  The trial
    judge dismissed the motion primarily because he was satisfied, based on the
    transcripts of the evidence at the preliminary inquiry, that the Crown had a
    viable argument for admissibility of evidence of the two complainants as
    similar fact evidence.  It was common ground that if the evidence was
    admissible as similar fact evidence, severance was not appropriate.

[3]

At the end of the Crowns case, the trial judge largely dismissed the
    Crowns similar fact evidence motion, although he did allow the motion as it
    related to the teaching comment.  The severance motion was not renewed.

[4]

There is no error in the trial judges severance ruling.  He properly
    considered the potential admissibility of the similar fact evidence in deciding
    whether to sever the counts.  The fact that the trial judge, after actually
    hearing all of the evidence and applying a very different standard of
    admissibility, determined that the similar fact evidence motion would be
    dismissed for the most part does not impact on the correctness of the severance
    ruling.

[5]

The trial judge applied the correct test in considering the severance
    motion.  He did not misapprehend any material evidence.  We cannot interfere
    with his exercise of discretion.

II

Did the trial judge err in allowing the jury to consider the
    teaching comment made by the appellant to both complainants as similar fact
    evidence, while excluding the evidence of the acts giving rise to that comment
    as similar fact evidence?

[6]

We see no error in the trial judges ruling.  The fact that both
    complainants testified that the appellant made the teaching comment, a remark
    which the jury could view as most unusual in the circumstances, was capable of
    supporting the credibility of the two complainants.

[7]

The trial judge correctly and repeatedly distinguished between the
    permissible use of the evidence of the teaching comment and the impermissible
    use of the related acts involving the individual complainants.  There was no
    objection to the charge.  We see no reason to hold that the jury could not
    understand or apply the distinction made by the trial judge.  We are satisfied
    that they could and did.

III

The alleged errors in the charge to the jury

[8]

In his factum, the appellant raises three objections to the charge to
    the jury.  In oral argument, counsel advanced one, although indicating that the
    appellant continued to rely on all three.  We are satisfied that the trial
    judge did not make any reversible error in his charge.  We will address only
    the argument on which counsel advanced oral submissions.

[9]

The defence argues that the trial judge should have expressly cautioned
    the jury against the risk of propensity reasoning based on the jurys
    assessment of the appellant as a bad person.  Propensity reasoning was
    certainly a risk in a case like this and the trial judge could have given the
    instruction now sought.

[10]

The trial judge approached the issue somewhat differently.  He
    repeatedly told the jury to consider the counts against each complainant
    separately and to not let any finding in respect of one complainant influence
    any finding in respect of the other.  In our view, this instruction effectively
    cautioned against propensity reasoning.  There was no objection to the charge.
    It is also telling that the jury acquitted the appellant on counts relating to
    two of the incidents involving his daughter.  The different verdicts arrived at
    by the jury tell against any resort to propensity reasoning by the jury.

IV

The admissibility of the expert evidence tendered by the
    defence

[11]

The defence wanted to tender a report prepared by a psychologist in
    child protection proceedings involving one of the complainants.  We are
    satisfied that the trial judge properly excluded that evidence on the ground
    that it was irrelevant.

[12]

There was no evidence put before the trial judge that the
    characteristics of the complainant identified by the clinical psychologist in a
    report prepared in a very different context and for a different purpose could
    possibly assist the jury in assessing the complainants credibility as it
    concerned the evidence she gave at this trial.  We cannot accept counsels
    submission that trial counsel could simply as a matter of common sense
    explain to the jury how the characteristics identified by the expert could
    negatively impact on the complainants credibility.

[13]

As we agree with the trial judge that the proposed report was not
    relevant, and therefore inadmissible, we need not address the trial judges
    alternative ground for excluding the report.

[14]

The appeal is dismissed.

Doherty J.A.

P. Lauwers J.A.

D.M. Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Saint, 2017 ONCA 491

DATE: 20170614

DOCKET: C61204

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Michael Saint

Appellant

Samuel Walker and Matthew R. Gourlay, for the appellant

Amanda Hauk and Bradley Reitz, for the respondent

Heard: December 5, 2016

On appeal from the conviction entered by Justice R.G.
    Hunter of the Ontario Court of Justice, dated May 19, 2015.

B.W. Miller J.A.:

Overview

[1]

Is a search warrant issued under the
Controlled Drugs and Substances
    Act
, S.C. 1996, c. 19 (the
CDSA
), invalid if it does not
    specify a date  or range of dates  for its execution? Can a date of execution
    nevertheless be implied? These are the issues on this appeal.

Background

[2]

Sarnia police believed, based on tips from confidential informants, that
    the appellant was trafficking in drugs from his residence on Sutton Street in Sarnia.
    The police applied to a Justice of the Peace for a warrant under s. 11 of the
CDSA
to search the appellants residence. The warrant specified the target of the
    investigation, the address to be searched, and the objects of the search. It
    stated that it provided authorization for any peace officer,
at any time
,
    to enter the said place  (emphasis added) to conduct the search.

[3]

The warrant was issued at 12:45 p.m. on April 10, 2014. It was executed
    by the police the same day, approximately seven hours later. The police seized
    a quantity of drugs, including methamphetamine, morphine, and hydromorphone,
    with an estimated value of $7,000 - $11,000.

[4]

The appellant argued that the warrant was invalid and the search a
    violation of his rights under s. 8 of the
Charter
. He brought an
    application under s. 24(2) of the
Charter
to exclude the evidence obtained.
    The basis of his challenge to the warrant was that it was, on his
    characterization, temporally unlimited; that is, the authorized search could be
    conducted on any date in the future, regardless of whether it took place days
    after issuance or years later, in the sole discretion of the police. Such an
    unlimited warrant, the appellant argued, is invalid, and the subsequent search
    was therefore warrantless and a violation of the s. 8
Charter
right not
    to be subjected to unreasonable search and seizure.

[5]

The trial judge rejected this argument, which the appellant renews on
    appeal. For the reasons that follow, I conclude that the trial judge made no
    error in finding that the warrant was valid and was executed in a reasonable
    manner that did not violate the appellants
Charter
rights. I would
    dismiss the appeal.

Analysis

(1)

The reasons for a search warrant

[6]

The function of a search warrant is to authorize police officers to
    enter a specified place they would otherwise have no authority to enter, in
    order to search for and seize specified property. Because forced entry into a
    private place, particularly a persons residence, is such an extraordinary exercise
    of executive power, it is subject to stringent juridical control: it must be
    judicially authorized
ex ante
and is subject to judicial scrutiny
ex
    post
:
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 29.

[7]

With respect to prior judicial authorization, the law is clear that a
    warrant must contain an adequate description of the place to be searched and
    the property to be searched for. There are multiple reasons for this demand for
    specificity. First, meaningful judicial pre-authorization requires specific
    details. It is crucial for effective judicial control of the search that the
    reviewing justice understand the parameters of the proposed search, and that
    the search conducted be the search that was in fact authorized:
R. v. Ting
,
    2016 ONCA 57, 333 C.C.C. (3d) 516, at para. 49. Second, by providing a precise
    description of the place to be searched, the warrant directs the actions of the
    executing officers, guiding them to the specific place to be searched and defining
    the boundaries of the search. An insufficiently specific warrant will fail to
    provide the requisite guidance to the executing officers, leaving them to fill
    in the blanks with their own knowledge, or to pursue attractive leads at their
    own discretion:
Ting
, at paras. 60-61. Third, specification of place
    in the warrant allows a person served with the warrant to readily apprehend
    that executing officers have legal authority to enter and conduct the search,
    reducing the risk of conflict and violent resistance to the search:
Ting
,
    at para. 49;
Eccles v. Bourque
, [1975] 2 S.C.R. 739.

[8]

The appellant argues that just as a warrant that does not adequately specify
    either the place or subject matter of the search does not fulfill these three functions
    of a search warrant, neither does a warrant that does not specify a
date
for the search. An undated warrant, the appellant argues, leaves the date of
    execution completely in the discretion of the executing officers  conceivably to
    a date where there are no longer grounds for a search. There may no longer be
    reason to believe that the subject matter of the search will still be present.
    The occupant of the premises may have moved on. Such a warrant is deficient in
    the guidance it provides to an executing officer, because although it may
    provide clear direction as to where the search is to take place and what is to
    be searched for, it provides no direction at all as to when the warrant can be
    executed. To this extent it also undermines the effectiveness of prior judicial
    authorization. Similarly, the absence of a clear direction in the warrant
    leaves occupants uncertain as to whether the execution of the warrant, perhaps
    some time well after issue, is reasonable and whether they are bound to comply.
    Precision as to
when
a warrant may be executed is as critical to its
    function and validity, the appellant argues, as precision as to
where
the search is to take place and
what
is to be searched for.

[9]

It is uncontroversial that a non-expiring warrant would undermine
    the purposes for the warrant requirement canvassed above: facilitating
    meaningful judicial pre-authorization; directing and limiting the police in the
    execution of the search; and allowing occupants to understand the scope of
    their obligation to cooperate with the search. There is an implied requirement
    that warrants be executed within a reasonable time of being issued:
R. v.
    Coull
(1986), 33 C.C.C. (3d) 186 (B.C. C.A.), at para. 12. Warrants that
    are not executed within a reasonable time, whether because of delayed execution
    or because an unreasonable time frame is expressly authorized by the warrant,
    have long attracted judicial disapprobation. In
R. v. Sing
(1892), 2
    B.C.R. 167 (S.C.), an example supplied by the appellant, a warrant to enter a
    premises, issued under the
Gaming Houses Act
, R.S.C. 1886, c. 158, was
    silent as to its expiry and was executed three years after it was issued.
The court quashed a conviction for obstructing a
    constable in the execution of the warrant, on the basis that the warrant had
    not been executed within a reasonable time:

[E]very order under section 2 of the Act respecting gaming
    houses should be executed within a reasonable time. The Act on this head is
    silent, but it never was intended that after a complaint made and an order for
    search given the order should be filed away without any attempt to enforce it
    for years. The premises may no longer be used for an improper purpose, and it
    would be contrary to justice that the stringent provisions of this Act should
    be put in force when or how the police thought proper.

[10]

The appellants argument, which I set out below, is that the warrant in
    this appeal is even more egregious than a warrant that was simply left undated:
    it is, on the appellants characterization, an expressly non-expiring warrant
    intended to be exercised at the discretion of the executing officer at any
    time. I will explain below why I am not persuaded by the characterization of
    this warrant as expressly non-expiring. I will then address the more general
    question of whether warrants that do not specify a date (or range of dates) for
    execution, can nevertheless have an implied execution date.

(2)

Is the warrant non-expiring?

[11]

The appellant characterizes the warrant in this case as expressly non-expiring.
    The warrant is intended, the appellant argues, to be executable at any date in
    the future, at the discretion of the police. The appellant seeks to distinguish
    this appeal from those cases in which the warrant in question was merely silent
    as to the date of execution, and an expiry date could arguably be implied (a
    class of cases to which I will return below).

[12]

The appellants argument proceeds in this fashion: although the
CDSA
does not prescribe any form for a warrant, the warrant used in this case was
    apparently based on a prepared form that did not contain a blank field into
    which an execution date was to be entered. The absence of a date was therefore not
    a mere slip  a failure to include something that was meant to be included.
    Neither was the omission a mere technicality. The design of the form, the
    appellant argues, omitting even a field to enter a date, is some evidence of an
    intention that the warrant was not intended to have any temporal limit.

[13]

This argument is further supported, the appellant argues, by the express
    language of the form, authorizing entry at any time, which the appellant
    interprets as literally permitting execution at all times, on any date in the
    future, without limitation. In support of this reading, the appellant relies on
R. v. Malik
, 2002 BCSC 1731, where the Crown conceded that a warrant
    that similarly authorized a search at any time was open-ended and therefore invalid,
    and that a search conducted two days after the warrant was issued violated s. 8
    of the
Charter
.

[14]

The context of
Malik
, however, is different from the case on
    appeal in two key respects:
Malik
involved the execution of a warrant
    issued under the
Criminal Code
, R.S.C. 1985, c. C-46, rather than the
CDSA
,
    and in
Malik
, the officer who drafted the warrant testified that he intentionally
    used this language to give the warrant an open-ended effect so as to give the
    R.C.M.P. latitude in accommodating changing circumstances when executing
    multiple search warrants.: at para. 8.

[15]

In any event, the appellants reading of at any time in
Malik
is not consistent with this Courts judgment in
R. v. Shivrattan
, 2017
    ONCA 23, 35 C.R. (7th) 143, at paras. 60-61. In that case, and in the context
    of assessing the reasonableness of a nighttime search pursuant to a
CDSA
warrant, Doherty J.A. interpreted at any time in s. 11 of the
CDSA
as obviating the need for special justification for execution after 9:00 p.m.
    for warrants issued under the
Criminal Code
, as required by s. 488 of
    the
Criminal Code
.

[16]

As the Crown argues, s. 11 of the
CDSA
is crucial context that
    informs the meaning of the phrase at any time in the warrant. Section 11
    provides that a justice who  is satisfied  that there are reasonable grounds
    to believe that (a) a controlled substance  is in a place may, at any time,
    issue a warrant authorizing a peace officer,
at any time
, to search
    the place  (emphasis added). Unlike warrants issued under sections 487 and
    487.1 of the
Criminal Code
, which must be executed by
day
(as
    that term is defined in the
Code
), unless the preconditions for
    execution at
night
in s. 488 are met, a warrant issued under s. 11 of
    the
CDSA
does not require any additional grounds to justify night-time
    execution, and no time of execution need be specified:
Shivrattan
, at paras.
    60-61.

[17]

The trial judge was correct to have rejected the characterization of the
    warrant as expressly non-expiring.

(3)

Does the warrant have an implied execution date?

[18]

Although I reject the appellants characterization of the warrant as
    expressly non-expiring, that is not the end of the analysis. The question
    remains whether the warrant is nevertheless invalid for not specifying a date
    for execution. (The appellant raises no issue as to the reasonable execution of
    the warrant, if the warrant was valid.)

[19]

The Crown argues that it is sufficiently clear that the warrant is for
    an entry on the date the warrant was issued. The Information to Obtain
    requested a warrant to permit police to enter the residence on April 10, 2014.
    As the warrant was signed at 12:45 p.m. on April 10, and no other date appears
    on the warrant, it is implicit that the warrant that was sought was intended to
    be executed on April 10, the day it was issued. In such a circumstance, the
    date of issuance stated on the warrant is also the date for execution: an
    express specification of the date for execution would be superfluous.

[20]

This proposition, that a date of execution can be inferred, and the
    failure to expressly set out a date is a technical fault that does not
    necessarily invalidate a warrant, is rooted in common sense and I accept it. In
    the context of warrants issued under the
Criminal Code
, it was accepted
    by Heeney J. in
R. v. Rafferty
, 2012 ONSC 703, concluding that a
    warrant signed on May 22, 2009 was to be executed that day. Although the
    appellant appealed to contrary authority from the trial courts of other
    provinces, holding that the absence of the date on a search warrant is a
    serious fundamental defect invalidating the search warrant (see, for example,
R.
    v. L.S.U.
, [1999] B.C.J. No. 2305 (S.C.), at paras. 22-24), I do not find
    these authorities persuasive.

[21]

In conclusion, the trial judge made no error in concluding that the
    warrant contained an implied date of execution, which was the date that it was
    issued. The warrant was facially valid. No other basis was raised for
    challenging the warrant under s.8. That is sufficient to dispose of this
    appeal.

[22]

It is not necessary for the resolution of this appeal to address the
    further questions of whether a warrant ceases to be valid
after
the
    expiration of its implied or express date of execution, and whether a search
    after that date would be a violation of s. 8 of the
Charter
.

Section 24(1): exclusion of
    evidence

[23]

Given the foregoing analysis, it is not necessary that I address the
    exclusion of evidence under s. 24 of the
Charter
.

Disposition

[24]

I would dismiss the appeal.

Released: JS JUN 14 2017

B.W. Miller J.A.

I agree. Janet
    Simmons J.A.

I agree. K. van
    Rensburg J.A.


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. Sanderson, 2017 ONCA 470

DATE: 20170608

DOCKET: C57359

Feldman, Gillese and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wayne Michael Sanderson

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Andrew Cappell, for the respondent

Heard: February 2, 2017

On appeal from the conviction entered on December 7, 2012
    by Justice Bonnie L. Croll of the Superior Court of Justice, sitting without a
    jury.

Pepall J.A.:

A.

introduction

[1]

The appellant was charged with eight counts
of
    sexual assault of an historical nature. He was acquitted of six counts relating
    to one complainant that were alleged to have taken place in the years 1982 and
    1984. He was convicted of one count of indecent assault and one count of gross
    indecency relating to the complainant TS for which he received a 12-month conditional
    sentence which has now been served. The events in issue took place in 1978. He
    appeals from the two convictions. For the reasons that follow, I would dismiss
    the appeal.

B.

Background facts

[2]

TS was a skater. The appellant became her
    skating coach when she was 14 or 15 years old and he was 21. In the late fall
    of 1978, when she was 16, the complainant asked the appellant to drive her home
    from skating one night. When asked, the appellant hemmed and hawed because he
    had to get back to the rink for his next lesson. In the end, he did drive her
    home.

[3]

At trial, the appellant was self-represented but
    had the assistance of
amicus

in the cross-examination of the complainant. Both the complainant
    and the appellant testified. Their descriptions of events on their arrival at the
    complainants home that evening varied.

(1)

Complainants Evidence

[4]

I will first describe the complainants
    evidence. At trial, she testified that when she and the appellant arrived at
    her home, the appellant initially declined her offer to come into her home for
    a drink but moments later, he knocked on the door. She gave him something clear
    to drink, a soft drink or water, and after taking one sip, the appellant told
    her there was something that he always wanted to do. She testified that he then
    kissed her, put his hands down her pants and touched her pubic area. She pushed
    him away and asked, What about your wife, MJ, dont you love her? to which he
    replied that of course he did. He then asked whether she wanted to go upstairs
    for a quickie. She told him that it was not a good idea as her parents were
    not home and the neighbours would be checking on her. The appellant then left.

[5]

In cross-examination, the complainant testified
    that although she had a huge crush on the appellant when he was her coach, she was
    angry and scared by his behavior that night.
Amicus
questioned her about her
    boyfriend (MS), the state of their relationship, and how the complainant
    might have used a false story about their mutual skating coach to make her
    boyfriend jealous:

Q.: Well, I am suggesting that you told your
    boyfriend that you guys were fighting, kind of rocky, and you told him that [the
    appellant] had shown interest in you and your boyfriend went out and confronted
    him in the parking lot?

A.: I dont know anything about that.

[6]

The complainant acknowledged that her
    relationship with MS was rocky at that time, but denied telling him about the
    incident at the time it happened and had no recollection of MS ever confronting
    the appellant in the parking lot of the rink.

[7]

The complainant testified that she did not tell
    anyone for a while and only told MS after they both stopped taking lessons from
    the appellant in April 1979.

[8]

The complainant went to the police about this
    incident in 2009 after learning of the other charges the appellant was facing.

(2)

Appellants Evidence

[9]

Turning then to the appellants evidence, he
    denied all the allegations made against him and denied that he went into the
    complainants house.

[10]

He testified that he was able to drive her home
    and only be a few minutes late for his lessons depending on the traffic. He had
    some 15 minutes while the ice was flooded before his next lesson and he
    calculated that he would be, at most, one to three minutes late if he drove the
    complainant home. He also testified that the ride to her home was about ten
    minutes each way.

[11]

He gave evidence on coaching practice at the
    time and testified that the coaching and scheduling arrangements were such that
    he would never ask another coach to watch his students until he arrived. He
    also testified about the strictness of ice time and that coaches were not
    permitted to be on the ice beyond their allocated time.

[12]

After driving the complainant home, the
    appellant returned to the rink to give his private figure skating lessons. The
    lessons did not have a free skate component where the coach did not need to be
    in attendance.

[13]

The appellant testified in chief that he had a
    confrontation with MS in the parking lot of the skating rink a couple of days
    after he drove the complainant home. He testified that MS asked him why he
    kissed the complainant. He replied that nothing had happened and that he did
    not know what MS was talking about. He told MS that if he had a complaint, he
    should go to the president of the skating club. The appellant was then
    cross-examined on his evidence about this alleged parking lot confrontation and
    his version of events remained unchanged.

C.

Trial judges Decision

[14]

In reviewing the evidence, the trial judge
    observed that given the appellants testimony that the ride to the
    complainants home was 10 minutes each way, this would suggest that the
    appellant would be at least more than five minutes late for his next lesson. She
    found that the appellants evidence that he could have driven the complainant
    home and returned in time for his next lesson did not ring true, especially in
    light of his apparent conscientiousness as a coach.

[15]

She said:

Stated differently, timing was the focus of
    [the appellants] evidence  the time for the drive to and from [the
    complainants] house, and the timing of the lessons and ice time  and the
    contradictions and inconsistencies on this issue cause me to reject his
    evidence. For these reasons, [the appellants] evidence does not leave me with
    a reasonable doubt about his guilt.

[16]

The trial judge found the complainant to be
    clear and logical in her evidence and her evidence was sequential, common
    sensible and credible. The trial judge was satisfied that the appellant kissed
    and touched the complainant in the manner she described and that she did not
    consent to this activity. Having considered the circumstances as a whole, she
    was satisfied beyond a reasonable doubt of the appellants guilt.

D.

ANALYSIS OF grounds of appeal

(1)

Credibility
    Findings

[17]

The appellant challenges the trial judges credibility
    findings. He submits that the trial judges assessment, including her basis for
    rejecting the appellants evidence, under the first and second branches of
R.
    v. W.D.
,
[1991] 1 S.C.R. 742 was
    unreasonable, as was her assessment of t
he
    complainants evidence under the third branch of
W.D.

[18]

I do not accept this submission. As the
    appellant readily acknowledged, assessments of credibility are entitled to
    strong deference on appeal. An appellate court may only intervene if the
    credibility findings are based on palpable and overriding error. No such error
    is present here. The trial judges reasons for her credibility findings were
    admittedly brief but they did explain why, following a four-day judge alone
    trial, she found as she did.

[19]

The trial judge rejected the appellants version
    of events as a result of perceived inconsistencies between the appellants
    version of what occurred and his skating schedule and coaching practices. She
    observed that timing was the focus of the appellants evidence. In essence, she
    found that his testimony of professed rigorous adherence to the skating
    schedule such that he could not have spent much time at the complainants home
    was at odds with his willingness to be late for the lesson on the night in
    issue.

[20]

As for her findings relating to the
    complainant, the trial judge clearly accepted her evidence and her findings are
    not infected by any error in that regard.

(2)

Reply
    Evidence

[21]

The appellants other arguments relate to the
    evidence called in reply by the Crown.

[22]

At the commencement of the trial, the trial
    judge made an order excluding witnesses. When the complainant began to give her
    evidence-in-chief,
amicus

observed that the complainants husband, MS, was present in the
    courtroom. The Crown advised the court that she was not calling him as a
    witness and did not know if
amicus
potentially
    could. The exchange continued:

Judge:  Counsel, theres an order excluding
    witnesses and if theres a possibility that [the complainants] partner is
    going to be a witness for either side, weve got an order.

Crown:   It wouldnt be from the Crown. He has
    never spoken to police. Its just my friend is anticipating defence evidence
    and what might be revealed from that.

Amicus
:   I was just alerting my
    friend to a point, but I will leave it at that.

Court.     All right, so we are content.

Amicus
:   We can continue.

[23]

Following this exchange, the complainant was
    asked about MS in cross-examination:

Q.      I am going to suggest to you that, in
    fact, you never confronted [the appellant] about this, what you did do was you
    told [MS] about it at that time when you were 16 and it was [MS] that went and
    confronted [the appellant] in the parking lot of the arena. Does that ring a
    bell?

A.       No, not at all.

Q.      So thats not your recollection?

A.       I dont recall any of that.

Q.      Okay. But do you recall telling - -
    your recollection is that you told [MS] later than that, told your husband, [MS],
    later?

A.       Yes, absolutely. I didnt tell him
    until after we were done with [the appellant] because I was afraid to.

Q.      Well, I am suggesting that you told
    your boyfriend that you guys were fighting, kind of rocky, and you told him
    that [the appellant] had shown interest in you and your boyfriend went out and
    confronted him in the parking lot?

A.       I dont know anything of that.

Q.      And in fact invited him to make a
    complaint if that was the case to the president of the arena. You dont have
    any recollection of that?

A.       No, not at all. I actually dont have
    any idea what you are talking about, the president of the arena. Are you
    talking about the president of our club?

Q.      Of the club, sorry.

A.       No, I had no thoughts or any idea of
    anything like that ever happening.

Q.      No, you didnt make a complaint at
    that time?

A.       No, no. Like I said, I didnt say
    anything to anybody. I told my girlfriend Cheryl from high school. I told her. She
    was the first person and only person I had told and after we were finished with
    [the appellant], I then told [MS], my boyfriend at the time. Those were the
    only people that ever knew up until more recently.

Q.      And I understand that this Cheryl you
    dont know her last name?

A.       I cant remember what her last name
    is, no. I dont remember.

Q.      And you have lost all touch with her
    so we dont have any way of getting a hold of her?

A.       She was a high school friend, you
    know. I havent kept in touch with anybody from high school.

Q.      And so the only other person that you
    told then was [MS]?

A.       Exactly.

[24]

As I have previously described, the appellant
    then gave evidence that he was confronted by MS in the parking lot where MS
    accused him of having kissed the complainant.

[25]

Following the appellants testimony, the Crown
    sought to call MS in reply. The trial judge observed that the issue of the
    confrontation arose during the Crowns case in chief because it was raised
    during the cross-examination of the complainant. She also noted that the Crown
    is prohibited from introducing evidence that initially should have been part of
    the Crowns case.

[26]

However, she accepted the Crowns submission
    that there was no positive evidence adduced in the cross-examination of the
    complainant, in that she had responded that she did not know anything about the
    confrontation. The questions had been suggestive in nature and had not elicited
    any actual evidence.

[27]

The trial judge stated at p. 362:

[T]he Crown can lead further evidence to rebut
    evidence that you have introduced. The question is the Crown is right; it isnt
    evidence when [
amicus
] merely asks a question about it, its evidence when you introduce
    it and the Crown is entitled to do that.

The Crown is prohibited from introducing
    evidence that should initially have been part of the Crowns case, but there is
    no evidence about this. There has [
sic
] only been questions about it, so I am prepared to let the Crown
    call the rebuttal witness, but it is very clear to me and it is clear to you
    and certainly the Crown is aware that the weight to be given to this evidence
    is potentially affected by the fact that he has been in here the entire time,
    no question about that, and that [the complainant] was under no prohibition to
    not discuss things after her evidence concluded as well.

[28]

She went on to say that the weight to be given
    to the evidence was potentially affected by the fact that MS had been in the
    courtroom during the trial and the complainant had not been under any
    prohibition to refrain from any discussions following the conclusion of her
    evidence. Ultimately, she permitted the Crown to call MS in reply.

[29]

MS then testified that the confrontation
    described by the appellant did not take place. MS only heard from the
    complainant about the inappropriate behaviour after the skating season had
    ended.

[30]

The trial judge did not refer to any of the
    evidence given in reply in her reasons for decision.

[31]

On appeal, the appellant submits that the trial
    judge erred in admitting the reply evidence. He relies on two grounds: first, allowing
    the reply evidence improperly permitted the Crown to split its case, and
    second, it offended the collateral fact rule.

Splitting of Crowns Case

[32]

Dealing first with the issue of splitting the
    Crowns case, the general rule is that the Crown is not allowed to split its
    case. As stated by McIntyre J. in
R. v. Krause
,
[1986] 2 S.C.R. 466 at p. 473, as part of its case, the Crown must
    enter all the clearly relevant evidence it has, or that it intends to rely
    upon, to establish its case with respect to the issues raised in the indictment
    and any particulars. As McIntyre J. explained, at the close of the Crowns
    case, the accused is entitled to know the full case that must be met.

[33]

In
R. v. G.P.
(1996), 31 O.R. (3d) 504(C.A.), Rosenberg J.A. observed at p. 514, that both
    the rule against splitting the Crowns case and the collateral fact rule
    attempt to balance fairness to the parties with the need for trial economy:

They are designed, so far as is possible, to
    avoid unfair surprise, confusion of the issues, and prejudice. The rules ensure
    that trials are not unduly prolonged but that, as it was put by McIntyre J. in
Krause
at the end of the day each party will have had an equal
    opportunity to hear and respond to the full submissions of the other.

[34]

However, where the defence evidence raises a new
    matter, a new fact, or a defence which the Crown had no opportunity to deal
    with, or could not have reasonably anticipated, McIntyre J. observed in
Krause
at p. 474:

[T]he Crown may be allowed to call evidence in
    rebuttal after completion of the defence case, where the defence has raised
    some new matter or defence which the Crown has had no opportunity to deal with
    and which the Crown  could not reasonably have anticipated. But rebuttal will
    not be permitted regarding matters which merely confirm or reinforce earlier
    evidence adduced in the Crowns case which could have been brought before the
    defence was made.

[35]

As Rosenberg J.A. noted in
G.P.
at p. 514, despite the
    broad language from
Krause
,

it has
    always been understood that the trial judge has discretion to admit evidence in
    reply concerning an issue that was of only marginal importance during the
    prosecutions case in chief, but took on added significance as a result of the
    defence evidence.

[36]

The Supreme Court in
R. v. Chaulk
, [1990] 3 S.C.R.1303 at p. 1364, adopted the following statement
    from
R. v. Drake

(1970), 1 C.C.C. (2d)
    396 (Sask. Q.B.):

There is a well-known principle that evidence
    which is clearly relevant to the issues and within the possession of the Crown
    should be advanced by the Crown as part of its case, and such evidence cannot
    properly be admitted after the evidence of the defence by way of rebuttal. In
    other words, the law regards it as unfair for the Crown to lie in wait and to
    permit the accused to trap himself. The principle, however, does not apply to
    evidence which is only marginally, minimally or doubtfully relevant.

[37]

Bearing these principles in mind, I turn to the
    appellants submissions. The appellant argues that, in compliance with the rule
    in
Browne v. Dunn
(1893), 6 R. 87 (H.L. (Eng.),
amicus
questioned the complainant on the
    confrontation between MS and the appellant and on when she told MS about the
    incident. He submits that the issue of MSs evidence was therefore foreshadowed
    by
amicus
 cross-examination of the
    complainant and the Crown was on notice to call evidence on the issue in its
    case in chief.

[38]

It is true that compliance with
Browne
    v. Dunn
, as a general matter, may

give notice of
    potential issues that the opposing party wishes to explore. That does not mean,
    however, that every suggestion put to a witness in compliance with the rule in
Browne
    v. Dunn
,
or any question
    which foreshadows a possible attack on a witnesss credibility, necessitates
    the Crown calling evidence on the issue in its case in chief. Such a rule would
    amount to chasing after every shadow. This is particularly true where the
    witness has not accepted a suggestion advanced and where, at the end of the
    Crowns case, the witness has not been successfully impeached and there is no
    need to rehabilitate the witness:
G.P.
,
at p.
    515.

[39]

Moreover, while a cross-examination may reveal
    part or all of an accuseds defence or version of events, the relevance of a
    particular line of inquiry may be only marginal at this stage. As stated in
McWilliams
    Canadian Criminal Evidence
, loose-leaf, 5th ed. (Toronto:
    Thomson Reuters Canada Limited, 2017), at para. 21:50:60:

[] Sometimes the Crown learns of a possible
    defence
before
the close of its case, for
    example through questions asked during the cross-examination of prosecution
    witnesses, or as a result of out-of-court communications with defence counsel.
    Crown counsel thus knows that certain evidence may, or even will, be required
    to counter the anticipated defence.

Nonetheless, in such circumstances the rule
    against case-splitting does
not
impose a general obligation to
    lead the countering evidence as part of the prosecution case in chief. This is
    so because Crown counsel will often be unsure whether the defence will be
    called, and even where certain on this point will usually be unaware of its
    precise contours and/or the specific evidence to be presented in support. To
    force the Crown to call evidence to refute an anticipated defence would thus
    frequently waste court time and create confusion, and may also cause unfairness
    by forcing the Crown to call the very evidence that it seeks to refute.

[40]

For these reasons, as concisely summarized in
McWilliams

at para. 21:50.30:

[T]he law is now clear: evidence marginally
    relevant, and thus strictly speaking admissible as part of the Crown case in
    chief, may nonetheless be admissible in reply where it takes on real
    significance only because of a position advanced during the defence case.
    Another way of saying the same thing, adopted in several Canadian cases, is
    that the matter to which the proposed reply evidence relates only became a
    live issue once the defence put in its case.

[41]

This courts decision in
R. v.
    Campbell
(1977), 17 O.R. (2d) 673 (C.A.) is frequently
    cited for this principle. In
Campbell
, Martin
    J.A. held that even though the accuseds version of events was foreshadowed by
    the cross-examination of the complainant, its relevance was only marginal at
    that stage and arose when the accused testified. It was accordingly within the
    trial judges discretion to admit reply evidence from the Crown.

[42]

In this case, in her cross-examination, the
    complainant did not adopt
amicus
 suggestion
    that she had told MS about the incident shortly after it occurred and that MS
    had confronted the appellant in the parking lot of the skating rink. There was
    no affirmative evidence of any confrontation and in any event, at that stage,
    it had little to no relevance.

[43]

Only when the appellant testified did it gain
    significance, not only because it contradicted the complainants evidence that
    she had not told MS about the assault until much later, but because the evidence,
    if accepted, allowed for an inference that the complainant may have fabricated
    the story to make her boyfriend jealous, thus prompting a confrontation. The
    reply evidence became necessary to provide the trial judge with accurate facts
    of what happened after the assault and, from the Crowns perspective, correct
    the distorted picture created by the appellants evidence that the complainant
    was motivated to make a false allegation and use the false story to make MS
    jealous, thus provoking a confrontation between MS and the appellant.

[44]

Finally, I would note that even if one concluded
    that MSs evidence could or should have been called in the Crowns case in
    chief, it cannot be said that allowing the reply evidence created an unfair
    advantage in favour of the Crown, nor that the appellant was caught off guard
    by the evidence. It was the appellant who anticipated the issue through his
    cross-examination of the complainant. Moreover, the Crown was not in
    possession of any evidence from MS. It is apparent from the transcript that he
    had not given a statement to the police and that the Crown did not anticipate
    MS to be a witness in the proceedings. Lastly, it bears noting that this was a
    judge alone trial and the risk that the late introduction of the evidence might
    magnify its importance beyond what was warranted is much less significant:
R.
    v. T.K.
,

2013 ONCA 257 (Ont. C.A.), at para. 46;
R. v. Markman
,
    [2002] O.J. No. 4250 (Ont. C.A.), at para. 3
.

[45]

In summary, when the complainant was
    cross-examined, the relevance of the evidence about MS was, at best, marginal. It
    was within the trial judges discretion to permit MS to be called in reply in
    this judge alone trial. Moreover, the evidence provided the trial judge with a
    more complete and accurate picture of what actually happened. The appellant
    incurred no prejudice as a result of the trial judges decision to allow the
    reply evidence. In these circumstances, it was properly within the trial
    judges discretion to permit the Crown to call MS in reply. I would therefore
    not give effect to this submission by the appellant.

No Contravention of the Collateral
    Fact Rule

[46]

This brings me to the second arm of the
    appellants submission on the reply evidence, namely that it impermissibly
    contravened the collateral fact rule. In
G. P
.
, at p. 516, Rosenberg J.A. summarized
    the effect of the collateral fact rule:

The effect of the collateral fact rule is
    that, subject to certain exceptions, a party is not entitled to introduce
    extrinsic evidence to contradict the testimony of an adversarys witness unless
    that extrinsic evidence is relevant to some other issue in the case other than
    merely to contradict the witness.

[47]

Watts Manual of Criminal Evidence

(Toronto: Carswell, Thomson
    Canada Limited, 2002), describes the rule as follows at para. 22.03, p. 265:

The collateral facts rule prohibits the
    introduction of evidence for the
sole
purpose of
contradicting
a witness testimony concerning a collateral fact. The rule seeks
    to avoid confusion and proliferation of issues, wasting of time and
    introduction of evidence of negligible assistance to the trier of fact in
    determining the real issues of the case. It endeavours to ensure that the
    sideshow does not take over the circus.
In general
, matters that relate wholly and
exclusively
to the credibility
    of a non-accused witness are collateral, hence beyond the reach of
    contradictory evidence.

[48]

The appellant asserts that the only purpose of
    allowing MS to testify in reply was to impeach the appellants credibility by
    suggesting that his narrative was inaccurate. I disagree. MSs evidence in this
    case was relevant to more than a general attack on the appellants credibility.
    If believed, the evidence of MS could undermine the defence position that the
    complainant was an emotional teenager who, angry at the appellant because she
    was not special to him, and in the midst of a rocky relationship with her
    boyfriend, fabricated a story of sexual assault, then told that story to her
    boyfriend, which in turn resulted in a confrontation.

[49]

The question of whether or not a confrontation
    happened goes to understanding the context and, in my view, bears directly on
    the question of whether the complainant had a reason to fabricate a story, and
    ultimately, on whether a reasonable doubt was raised. Rosenberg J.A. observed
    in
G.P.
at p. 516:

As part of the defence case, the appellant was entitled to lead
    evidence to show that Ms. P. had a motive for falsely testifying and for
    putting her daughter up to making a false allegation: see
R. v. Busby
(1982), 75 Cr. App. R. 79
(C.C.A.);
R. v. Shaw
(1888), 16 Cox C.C. 503
. The appellant's
    evidence, if believed, cast the relationship between him and Ms. P. in an
    entirely different light. That evidence not only contradicted Ms. P. but
    provided a motive on the part of Ms. P. to fabricate her evidence. The Crown
    was then entitled to lead evidence, if it had any, to rehabilitate its witness
    by showing that she did not have the motive to fabricate alleged against her.
    The motive of the complainant to falsely charge the appellant was an essential
    element of the case. It was central to the theory of the defence and as the
    case was developed by the defence the relationship between Ms. P. and the
    appellant related to that question. Viewed this way, evidence concerning motive
    to fabricate could not be collateral.

[50]

Similarly, in
R. v. Prebtani
, 2008 ONCA 735, 240 C.C.C. (3d) 237, Rosenberg J.A. explained at
    para. 130:

I agree with the appellant that admission of
    this evidence would not offend the collateral fact rule.

In this case, the cousins evidence would not
    merely contradict the complainants assertion that she did not swear at the
    appellant on the occasion in question. The evidence, if believed, could
    undermine the complainants assertion that the appellant, rather than she, was
    the verbally abusive party in the relationship. It could also undermine her
    broad assertion that she would never swear at the appellant for fear that he
    would abuse her.

[51]

See also
R. v. Lawes
(1996), 187 A.R. 321, affirmed [1997] 3 S.C.R. 694.

[52]

In this case, the evidence could serve to debunk
    the picture painted by the appellant that the complainant was motivated to make
    a false allegation against the appellant and to use that story to provoke
    jealousy in her boyfriend, which in turn resulted in a confrontation. I
    therefore would not give effect to the appellants submission on the collateral
    fact rule.

E.

disposition

[53]

For these reasons, I would dismiss the appeal.

Released:

KF                                                     S.E.
    Pepall J.A.

JUN -8 2017                                       I
    agree K. Feldman J.A.

I
    agree E.E. Gillese J.A.


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. T.H., 2017 ONCA 485

DATE: 20170613

DOCKET: C60440

MacPherson, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.H.

Appellant

Delmar Doucette and Janelle Belton, for the appellant

David Finley, for the respondent

Heard: May 16, 2017

On appeal from the conviction entered by Justice Roland
    J. Haines of the Superior Court of Justice, sitting with a jury, on June 2,
    2014.

MacPherson J.A.:

A.

Introduction

[1]

The appellant was convicted of sexual assault following a jury trial.
    The complainant was the young daughter of the appellants sometime partner.

[2]

The child complainant gave two videotaped statements to police
    describing the appellants sexual contact with her. She also testified,
    including cross-examination, at the preliminary inquiry.

[3]

At trial, the complainant, who was then 11 years old, testified. As the
    examination-in-chief proceeded, the complainant became progressively
    unresponsive. She refused to be cross-examined.

[4]

Defence counsel brought an application seeking a stay pursuant to s. 24
    of the
Charter
on the basis that the inability to cross-examine the
    complainant infringed the appellants
Charter
s. 7 right to make a full
    answer and defence.

[5]

The trial judge refused to grant a stay, finding that the extraordinary
    remedy of a stay would not be appropriate in the circumstances. Instead, he
    concluded that the issue of the absence of cross-examination could be addressed
    appropriately in his jury instruction.

[6]

The principal issue on this appeal relates to the trial judges
    treatment of the issue of the absence of cross-examination of the complainant
    at the appellants trial. Did he err by not declaring a mistrial? Was his
    instruction to the jury on this issue sufficient?

[7]

A second issue on the appeal relates to the trial judges refusal to
    permit a proposed defence expert to testify about false subjective memory.

B.

Facts

(1)

The parties and events

[8]

Commencing in 2004, the appellant had a relationship and occasionally
    lived with the complainants mother, S.T. In 2007, when the complainant was approximately
    four years old, she informed her great-aunt that the appellant had put
    something inside her genital area. The great-aunt informed the Childrens Aid
    Society (CAS). The CAS ordered S.T. to take the complainant to a family
    doctor for a medical examination and to the CAS for an interview.

[9]

A family doctor performed the medical examination. He reported that
    while he did not find signs of sexual abuse, the complainant had informed him
    that the appellant had touched her genital area with something big.

[10]

At about the same time, a CAS worker and a police officer interviewed
    the complainant with her mother present. The complainant said nothing about
    sexual contact or conduct.

[11]

A year later, in 2008, S.T., the complainant and her siblings moved into
    the appellants house in London. In July 2009, the complainant and her siblings
    moved to Stratford after a domestic dispute between S.T. and the appellant.

[12]

Following the dispute, London CAS interviewed the complainant, then six
    years old, and her brother, eight years old. Both stated that the appellant had
    sexually abused them when they lived in his residence. On September 14, 2009,
    the complainant gave a videotaped statement to CAS personnel and the police.
    She described multiple acts of sexual abuse by the appellant.

[13]

On September 30, 2009, the appellant was charged with sexual assault and
    sexual interference and was released on a recognizance with the condition not
    to see the complainant or her family (the London charges). Contrary to the
    condition of his recognizance, the appellant began to regularly visit the
    complainants new residence in Stratford from Christmas 2010 onwards.

[14]

On March 11, 2011, the complainant, then eight years old, informed her
    school teacher that the appellant was sexually abusing her. The teacher called
    the CAS. In the afternoon of March 11 and again on March 14, the complainant
    was interviewed by the police and CAS personnel. The interviews were video recorded.
    In the interview, the complainant described, with gestures, that the appellant
    had touched her genitals and other parts of her body with his penis on a number
    of occasions.

[15]

The appellant was charged with sexual assault (the Stratford charges).

[16]

At the preliminary inquiry in July 2012, the complainant testified. She
    was examined and cross-examined. The appellant was committed to stand trial.

[17]

Prior to the commencement of the trial in relation to the Stratford
    charges, the appellant was convicted and sentenced in relation to the London
    charges.

(2)

The Trial

(a)

The complainants testimony

[18]

At trial, the complainant testified in examination-in-chief about the
    appellants sexual abuse in Stratford. She was 11 years old. She had testified
    at the London trial and at the preliminary inquiry relating to the Stratford
    charges.

[19]

In the course of her testimony, the complainant adopted the two
Criminal
    Code
s. 715.1 videotaped statements she had given in March 2011.

[20]

As the examination-in-chief progressed, the complainant became
    increasingly reticent and unresponsive.

[21]

Early in the cross-examination, the complainant refused to answer
    defence counsels questions. The court took a short break and the Crown counsel
    tried to persuade the complainant to participate in the cross-examination. She
    refused. The situation was summarized in a series of written questions from
    Crown counsel and written responses by the complainant:

Q.      Why are you not answering Qs?

A.       Because I dont want to!

Q.      You
    testified before, why are you not able to today?

A.       Its harder.

Q.      Do you want
    to answer Qs by writing down the answer?

A.       No!

Q.      Why is it
    harder? Is it the stuff you have to talk about?

A.       Yes.

[22]

When court resumed, the trial judge informed the jury: Members of the
    jury, I am now satisfied that [the complainant] will not respond to any more questions.

[23]

Defence counsel did not seek a mistrial. However, he did request, and
    the Crown did not oppose, that the complainants testimony at the preliminary
    inquiry be admitted as evidence pursuant to s. 715 of the
Criminal Code
, R.S.C., 1985, c. C-46
. The trial judge
    so ordered. The jury was provided with an audiotape and the corresponding
    transcript of this evidence.

[24]

At the conclusion of testimony, defence counsel sought a stay of the charge
    on the basis that his inability to cross-examine the complainant amounted to a
    denial of the accuseds right to make a full answer and defence as protected by
    s. 7 of the
Charter
.

[25]

The trial judge dismissed the application. In brief reasons, he said:

As I indicated this material was served on Friday, but as a
    result I had the opportunity to review it over the weekend. I am not convinced
    in the circumstances the extraordinary remedy of a stay would be appropriate
    and accordingly I will dismiss the motion for a stay.

[26]

However, the trial judge also determined that he should provide a
    specific instruction to the jury about the impact of the absence of
    cross-examination of the complainant. He delivered this instruction:

Cross-examination is the vehicle or method by which counsel are
    able to test the evidence of witnesses. It is fundamental to our trial process.
    When a witness refuses to respond in cross-examination, as [the complainant]
    did in this case, defense counsel is deprived of that means of challenging her
    testimony. Her evidence from the preliminary hearing where she was cross-examined,
    was admitted into evidence because she would not respond at the trial; so you
    do have that cross-examination to consider.

You may wish to consider whether a full cross-examination of
    her at trial would have been effective in diminishing her credibility and
    raising a reasonable doubt. In any event, you should approach the testimony of
    [the complainant] carefully, keeping these matters in mind. In doing so, you
    should consider all the evidence and identify evidence that you do accept from
    other witnesses who were cross-examined that supports or confirms the evidence
    of [the complainant]. You may wish, but are not required, to identify such
    corroborating evidence before relying on a particular aspect of [the
    complainants] evidence upon which she was not cross-examined.

(b)

The defences proposed expert witness

[27]

At trial, the defence sought to qualify Dr. Timothy Moore, the chair of the
    Department of Psychology at Glendon College, York University, as an expert in
    the areas of memory and childrens suggestibility. The defence intended to have
    Dr. Moore respond to a series of questions encapsulated in this question:

Is it possible for a child between the ages of 5 and 10 to have
    imagined abuse and incorporated imagined images of abuse into auto-biographical
    memory and then to develop a subjective feel of authenticity for these memories
    when they are a year or two older?

[28]

The trial judge ruled against the admission of Dr. Moores evidence. He
    said, in part:

It was my opinion upon hearing his evidence and the manner in
    which he advocated his views that the admission of his evidence, while being no
    more than helpful in alerting the jury to the vagaries of memory and the care
    with which they should approach the testimony of the child complainant, could
    potentially distract jurors from their task and distort the fact finding
    process.

In my view, the issues of credibility and reliability at play
    in this case require no specialized knowledge beyond the common knowledge and
    experience of jurors, properly instructed.

[29]

Accordingly, the trial judge found that the proposed expert evidence did
    not meet the necessity component of the test for admission: see
R. v. Mohan
,
    [1994] 2 S.C.R. 9.

C.

Issues

[30]

The issues on appeal are:

1.       Did the
    trial judge err in his treatment of the scenario that arose when the
    complainant refused to answer questions on her cross-examination?

2.       Did the
    trial judge err by ruling Dr. Moores proposed testimony inadmissible?

D.

Analysis

(1)

The cross-examination issue

[31]

The appellant makes two submissions on this issue.

[32]

First, the appellant contends that the trial judge should have declared
    a mistrial once it became clear that the complainant would not answer questions
    in cross-examination. The starting point for the appellants submission is
    recognition that an accuseds right to cross-examine witnesses is a central and
    very important component of an accuseds constitutionally protected right to
    make a full answer and defence. As expressed by Major and Fish JJ. in
R. v.
    Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 41, 43 and 44:

[T]he right of an accused to cross-examine prosecution
    witnesses without significant and unwarranted constraint is an essential
    component of the right to make a full answer and defence.

Commensurate with its importance, the right to cross-examine is
    now recognized as being protected by ss. 7 and 11(d) of the
Canadian
    Charter of Rights and Freedoms
. See
Osolin
,
supra
, at p.
    665.

The right of cross-examination must therefore be jealously
    protected and broadly construed.

[33]

The appellant contends that a proper application of
Lyttle
required the trial judge to declare a mistrial. The complainant was, by far,
    the crucial Crown witness at the trial. Once she could not be cross-examined
    because of her refusal to respond to defence counsels questions, the trial continued:
    this continuation was unfair to the accused.

[34]

For several reasons, I do not accept this submission

[35]

First, and importantly, defence counsel did not seek a mistrial when his
    cross-examination of the complainant was halted by her unresponsiveness.
    Instead, defence counsel sought and obtained the admission of the complainants
    testimony at the preliminary inquiry. The other Crown witnesses then testified
    and defence counsel cross-examined them. When it came time for the defence case
    to be presented, defence counsel tried, unsuccessfully, to call expert
    evidence. He was also given a lengthy break before informing the court that the
    accused would not testify. In short, defence counsel could have asked for a
    mistrial. He chose not to and proceeded with the trial.

[36]

Second, against the backdrop of the courts statement in
Lyttle,
at
para. 45, that the right of
    cross-examination itself is not absolute, there is a well-established test for
    determining whether a cross-examination of a witness impeded by
    unresponsiveness has such a serious impact on the accuseds ability to make a
    full answer and defence as to render the trial unfair.

[37]

The leading case is
R. v. Hart
, (1999), 135 C.C.C (3d) 377
    (N.S.C.A.), leave to appeal refused, [2000] S.C.C.A. No. 109, a sexual assault
    case involving a 12 year old complainant who was unresponsive during
    cross-examination. Based on the complainants unresponsiveness, the defence
    sought a judicial stay or a directed verdict of acquittal. The trial judge
    declined to grant this relief and this decision was upheld by the Court of
    Appeal.

[38]

After a careful review of relevant common law and
Charter
principles and Canadian, English and American authorities, Cromwell J.A.
    identified three factors that should be taken into account in determining
    whether the unresponsiveness of a child witness during cross examination denies
    an accused the right to make a full answer and defence and renders the trial
    unfair: (1) the reason for the unresponsiveness; (2) the impact of the
    unresponsiveness; and (3) possibilities of ameliorative action:
Hart,
at
    pp. 410-414; see also
R. v. Cameron
(2006), 208 C.C.C (3d) 481 (Ont.
    C.A.); and
R. v. Duong
, 2007 ONCA 68, 84 O.R. (3d) 515.

[39]

The first factor tells in favour of the appellant. The complainants
    unresponsiveness was caused by the subject matter of her evidence; it was not
    caused by any improper defence action.

[40]

The second factor favours the respondent. Obviously, the complainant was
    the main Crown witness. The absence of an opportunity to cross-examine her
    clearly removed a potentially important aspect of the defence case. On the
    other hand, the jury had seen the complainant testify for some time and then
    saw her become unresponsive. They also had the transcript and audiotape of the
    preliminary inquiry, where the complainant had testified, including
    cross-examination. They could evaluate the impact of her unresponsiveness on her
    credibility and reliability. Both of these aspects of her testimony were before
    the jury. Moreover, perhaps not surprisingly for an eight year old, her two
    statements to police which were admitted into evidence contained many
    inconsistencies.

[41]

The third factor, in my view, is crucial. In
Lyttle
, the court
    said, at para. 45:

Just as the right of cross-examination itself is not absolute,
    so too are its limitations. Trial judges enjoy, in this as in other aspects of
    the conduct of a trial, a broad discretion to ensure fairness and to see that
    justice is done  and seen to be done.

[42]

In the present case, the trial judge decided that the unresponsiveness
    of an 11 year old witness in a cross-examination relating to allegations about
    sexual abuse by her mothers boyfriend was not fatal to a fair trial.
    Accordingly, he did not declare a mistrial (he was not asked to). Nor did he grant
    the stay sought by the accused long after the complainant had finished her
    testimony and after many other witnesses had also testified without objection.

[43]

Instead, the trial judge sought to balance and accommodate the fair
    trial interests of the accused and the difficult situation of the young
    complainant. In doing so, he was, in my view, cognizant of something else
    Cromwell J.A. said in
Hart
, at pp. 399 and 400:

Over the last 10 years, there has been growing recognition that
    some rules of evidence and trial procedure do not adequately address the
    special needs of young witnesses, particularly in sexual abuse cases.

[F]lexibility and common sense must be applied when considering
    the consequences of a child witness becoming unresponsive during
    cross-examination. It seems to me to be wrong to base the analysis on whether
    the unresponsiveness is the fault of the witness, as some of the older
    authorities do. While it may be appropriate to consider whether the party
    calling the witness and the party cross-examining have done what is reasonably
    possible to mitigate the difficulties of testifying, the primary focus of the
    analysis should be the impact of the limitation on cross-examination on the
    ability of the jury to assess the evidence. This analysis should have due
    regard to the particular circumstances of the case, viewed realistically and with
    common sense by standards appropriate to a witness of the age and
    sophistication of the child in question. In short, the assessment must be made
    with the flexibility and common sense appropriate to child evidence generally,
    not according to stereotypes or rigid rules.

[44]

In the particular circumstances of this case, the trial judge was
    correct to conclude that the complainants inability to participate in
    cross-examination was consistent with trauma and needed to be accommodated in a
    manner that struck a balance between the accuseds right to make a full answer
    and defence and the societal need to protect the most vulnerable of
    complainants, children. On my reading of the record, the complainant was in no
    position to continue with cross-examination and it was not clear that she would
    have been able to do so in the future. In such a circumstance, declaring a
    mistrial would not have been appropriate, even if defence counsel had requested
    it.

[45]

In striking the appropriate balance, the trial judge accepted the
    defence request that the complainants testimony at the preliminary inquiry be
    admitted as evidence pursuant to s. 715 of the
Criminal Code
. The
    complainant had been cross-examined at the preliminary inquiry and defence
    counsel was able to make submissions about that testimony as well as the other
    evidence in his closing address to the jury. In addition, the trial judge
    specifically cautioned the jury about the absence of a cross-examination of the
    complainant. In my view, taking these components together, the trial judge, per
Lyttle
, exercised his broad discretion to ensure trial fairness in an
    appropriate fashion.

[46]

The appellants second, and alternative, submission on this issue is
    that the trial judges specific instruction, the caution, did not go far
    enough. Defence counsel at trial sought a modified
Vetrovec
instruction in which the trial judge would tell the jury that it would be
    dangerous to convict the appellant on the basis of the complainants evidence
    without confirmatory evidence. The appellant renews this position on this
    appeal.

[47]

I am not persuaded by this submission. In my view, the trial judge
    provided a jury instruction that was explicitly directed at the complainants
    evidence and arose from her refusal to be responsive to questions during
    cross-examination. The overall tenor of the instruction was cautionary, stating
    specifically that the jury should approach the testimony of [the complainant]
    carefully and look for confirmatory evidence. I see nothing wrong with the
    specific instruction he gave flowing from the absence of cross-examination of
    the complainant.

(2)

The expert evidence issue

[48]

The appellant submits that the trial judge erred by refusing to admit
    the evidence of the defences expert, Dr. Timothy Moore. He would have
    testified about whether imagined images of abuse could be incorporated into
    autobiographical memory that a child can then subjectively believe. The
    complainant stated in one of the March 2011 interviews that the appellant
    comes into my room in the middle of the night I dont know what he does
    because Im sleeping but all I know is he comes in my room. As well, at the
    preliminary inquiry, the complainant testified that she had had dreams that the
    appellant came into her bedroom and did bad things to her, although she claimed
    that she could tell the difference between when she was dreaming and when she was
    awake. According to the appellant, Dr. Moores evidence was thus relevant to
    whether the complainant could have mistaken an experience of abuse with dreams
    that had been embedded as a false subjective memory.

[49]

The trial judge ruled that Dr. Moores evidence was inadmissible because
    it did not meet the necessity criterion and because its probative value was
    outweighed by its potential distracting effect.

[50]

The appellant contends that the trial judge erred on both counts of his
    reasoning.

[51]

I do not accept this submission. This court has consistently held that a
    trial judges decision to admit or exclude expert evidence is entitled to
    deference on appellate review, unless there is an error in principle or the
    decision is unreasonable: see
R. v. McManus
, 2017 ONCA 188, at para.
    68. I see no error in the trial judges balancing of the relevant factors in
    his ruling and the ultimate decision is far removed from being unreasonable.

[52]

This court, per Rosenberg J.A., has upheld a trial judges decision not
    to admit Dr. Moores expert testimony in a trial with facts similar to this one:
    see
R. v. C.
(
T.
)
(2004), 72 O.R. (3d) 623. I see no
    basis for a different decision on this appeal

E.

Dispostion

[53]

I would dismiss the appeal.

Released: JCM  JUN 13 2017

J.C. MacPherson
    J.A.

I agree. R.A. Blair
    J.A.

I agree. Gloria
    Epstein J.A.