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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. T.J., 2014 ONCA 321

DATE: 20140425

DOCKET: C54747

Laskin, Rosenberg & Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.J.

Appellant

Michael Dineen, for the appellant

Katie Doherty, for the respondent

Heard: October 29, 2013

On appeal from the conviction entered on November 22, 2010 by Justice Wendy L. MacPherson of the Superior Court of Justice, sitting without a jury.

Laskin J.A.:

A.           Overview

[1]          The appellant was convicted of sexual abuse of M.C., the daughter of his former common law spouse, S.C.  M.C. alleged that she had a sexual relationship with the appellant for several years, beginning when she was ten or eleven and asked to touch the appellant’s penis, and ending when she was 14 and made a complaint to the police.  The appellant denied that he had engaged in any sexual activity with M.C.

[2]          The case thus turned on the credibility of the complainant’s allegations and the appellant’s denial.  The trial judge rejected the appellant’s evidence and accepted the complainant’s evidence.  She convicted the appellant of all four counts on the indictment[1] and sentenced him to four years’ imprisonment. 

[3]          The appellant’s appeal against his conviction focuses on the trial judge’s reasons for rejecting his evidence.  The trial judge gave several reasons.  The appellant challenges two of them:

1. The appellant submits that the trial judge erred by finding that he spoke to no one and took no steps in response to the complainant’s request to touch his penis.  He argues that this finding is unfair and unsupported by the record because he was never asked what he did after the incident.

2. The appellant submits that the trial judge erred by relying on an out-of-court statement by S.C. – “Why don’t you just fuck Dad?” – as evidence that she was aware of an inappropriate relationship between her daughter and the appellant.  The appellant argues that the trial judge’s use of the statement in this way was unjustified because S.C. was never called to testify, though she was available to do so.

[4]          I agree with the appellant’s submissions.  Although the trial judge’s other reasons for rejecting the appellant’s evidence are supportable, they cannot be disentangled from her flawed reasons.  Accordingly I would allow the appeal, set aside the appellant’s convictions and order a new trial.

B.           Background

(a) The Parties

[5]          At the time of trial in May 2010, the complainant was 16 and the appellant was 44.

[6]          When the complainant was seven or eight, she was taken from her mother and placed in foster care.  Her mother visited her weekly.  When the appellant began a relationship with S.C., he came to these weekly visits. 

[7]          In 2004, when the complainant was ten, she left foster care and went to live with her mother and the appellant at his house.  She testified that she had a close relationship with the appellant: she saw him as a father figure.  At the time, the appellant also had joint custody of his two teenaged sons.

(b) The Complainant Asks to Touch the Appellant’s Penis

[8]          At bedtime, the appellant routinely went to the complainant’s room to give her a hug and kiss and to say goodnight to her.  One evening when she was ten or eleven, the appellant came to say goodnight, and she asked to see and touch his penis.  The complainant and the appellant gave different accounts of what then occurred. 

[9]          The complainant testified that the appellant removed his pants and allowed her to touch his penis.  He did not appear shocked by her request.  In contrast, the appellant testified that he was shocked and that he told the complainant that she should not ask that again.  However, he did not interpret the incident as a sexual advance.  The appellant was not asked whether he spoke about the incident to the complainant’s mother or to anyone else.

(c) The Complainant’s Allegations of a Sexual Relationship, and the        Appellant’s Denial

[10]       The complainant testified that after this incident, she and the appellant became physically intimate.  They began by cuddling when he came to say goodnight, they progressed to taking each other’s clothes off, and eventually they had intercourse.  The complainant said that they had sex once or twice a week.  The appellant either used a condom or pulled out before ejaculating.  The complainant also said that the appellant never forced her to do anything and that she liked what they did, though she knew it was wrong.

[11]       The appellant testified that he never engaged in sexual activity with the complainant.  The defence’s position was that the complainant fabricated her allegations following the appellant’s acrimonious separation from her mother. 

(d) S.C.’s Out-of-Court Statement

[12]       One summer day in 2007, the appellant was sitting by his backyard pool while the complainant and his two sons were swimming.  He had a badly sunburned back.  The children got out of the pool and started a contest to see who could peel the biggest piece of skin off his back.  While the contest was taking place, S.C. arrived home.  When she saw the complainant peeling the appellant’s skin she said: “Why don’t you just fuck Dad and get it over with?”

[13]       The complainant ignored her mother’s comment.  However, the appellant followed S.C. into the house and confronted her about it.  According to the appellant, she would not answer.  Neither the Crown nor the defence called S.C. as a witness at the trial. 

(e) The Appellant and S.C. Separate; the Complainant Comes to Stay with the Appellant

[14]       In October 2007, the relationship between the appellant and S.C. deteriorated, and they soon separated.  They argued about money.  When the appellant claimed that S.C. had taken $80,000 from their joint bank account without his permission, she left abruptly and took the complainant with her. 

[15]       For eight months, from October 2007 to May 2008, the complainant and the appellant had no contact with each other.  Then the complainant called him.  She had been fighting with her mother, and asked to stay with him.  He said yes, and she stayed overnight.  S.C. called the police that evening and they went to the appellant’s house around 11:00 p.m.  The complainant said that she was fine, and the police took no action.  In her trial testimony, the complainant said that she had no sexual contact with the appellant that night. 

[16]       However, the complainant continued to stay with the appellant, and testified that their sexual relationship resumed a few nights later.  Again, the appellant denied any sexual contact with the complainant. 

(f)  May 20, 2008: The Appellant is Arrested

[17]       In the early morning hours on May 20, 2008, in response to another complaint from S.C., two police officers went to the appellant’s house.  They testified that the house was dark, but an upstairs light illuminated the hallway.  After the officers knocked on the door, they saw a man coming from the left side of the house – where the master bedroom was located – walk into the bathroom, and emerge with a housecoat on.  They also saw a smaller person run from the left side of the house to the right side, where another bedroom was located.

[18]       The appellant answered the door.  The police asked whether M.C. was there; he answered, “let me go see if she is awake.”  The officers said that they knew she was awake and went upstairs.  They testified that the complainant was in the other bedroom but that from the master bedroom’s appearance, it appeared that two people had been sleeping in it.  The police arrested the appellant for sexual exploitation.

[19]       The appellant and the complainant also testified about what occurred that evening.  The appellant said that the complainant came into his room to wake him up because someone was at the door.  He looked out the bedroom window and saw two police cruisers.  He put his housecoat on, told the complainant to go back to bed, and went downstairs to answer the door.

[20]       The officers barged past the appellant and demanded to know where M.C. was.  They went upstairs and the appellant followed them.  They wanted to know what a 14 year-old girl was doing in his room at 2:30 a.m.  He explained that she had come in to wake him up.  The complainant also tried to explain this but was told by one of the officers to “keep quiet and get dressed.”  The appellant was then arrested. 

[21]       The complainant said that she was asleep in the appellant’s bed, but was awoken around 2:30 a.m. by the sound of the doorbell.  She looked outside and saw two police cruisers.  The appellant told her to go to her room and act like she was sleeping.

[22]       At first, the complainant denied any sexual relationship with the appellant.  Eventually, however, she told the police that she had been in a sexual relationship with the appellant from the time she was ten or eleven years old.

C.           analysis

[23]       The trial judge gave lengthy oral reasons, in which she described the evidence in detail.  Toward the end of her reasons, she assessed the credibility of the appellant’s denial.  She gave four reasons for rejecting his evidence that he never engaged in any sexual activity with the complainant: first, he spoke to no one and did nothing after the incident in which the complainant asked to touch his penis; second, his “testimony concerning his relationship with M.C. was evasive”; third, he exhibited jealousy when he discovered that the complainant had a boyfriend; and fourth, S.C.’s statement, “why don’t you just fuck Dad,” showed that she “knew that something improper was going on between her daughter and Mr. [T.J.]”.

[24]       Mr. Dineen, on behalf of the appellant, does not challenge the second and third reasons given by the trial judge, though he submits that they reflect an uncharitable reading of the appellant’s evidence.  He takes issue with the first and fourth reasons. 

(1) The Appellant’s Response to the Complainant’s Request to Touch His         Penis

[25]       The trial judge found that after the complainant asked to touch the appellant’s penis, the appellant spoke to no one about the incident, took no steps to make sure it did not happen again, indeed, did not even alter his bedtime routine.  The trial judge said:

If I were to accept Mr. [T.J.]’s evidence that he did not allow her to touch his penis and that nothing of a sexual nature occurred after that, as a step-father to his girlfriend’s daughter and knowing that [M.C.] had been in foster care for two to three years prior to moving in with him, I would have expected that Mr. [T.J.]’s reaction to the request would have been not only one of shock but that he would have taken immediate steps to make sure that someone else knew about this behaviour and to have it addressed.

There was no evidence before me that he ever spoke to the child’s mother, [S.C.], about his particular exchange with [M.C.].  After such an incident, one would have expected that a very serious and urgent discussion would have taken place with the child’s mother.  There was also no evidence that he spoke with anyone else about the incident.  The obvious person that comes to mind would have been the Children’s Aid worker, who [M.C.] confirmed came to the home regularly after she began living there every two to three months.

I would also have expected that such an incident would have prompted some steps to be taken to ensure that nothing like that happened again; those steps being to alter the regular bedtime routine and to make a point of not being alone with [M.C.].  That would have been the type of action that a reasonable adult would take in the circumstances but the defendant took none of those steps.

On the defendant’s own evidence, he continued with the usual ritual of saying goodnight to his own two children first when they were there and then going in to say goodnight to [M.C.] on his own without the child’s mother.  He admitted in direct and in cross-examination that, in fact, on occasions [S.C.] did comment on the amount of time that he was spending in [M.C.]’s room saying goodnight to her.

[26]       The trial judge’s finding on the appellant’s response to the incident was an important basis for her rejection of his evidence.  Yet, the basis for this finding is not made out for the following two related reasons.

[27]       First, her finding is not supported by the evidence.  To the contrary, the record is silent on whether the appellant spoke to anyone or took any steps after the incident because he was not asked if he did so, either by his own counsel or by the Crown.  Without evidence, the trial judge could not assume that the appellant did nothing and then use that assumption to reject his testimony.  As this court said in R. v. R.C., 2008 ONCA 98, [2008] O.J. No. 480, at para. 9:

He answered the questions that were put to him.  His failure to offer detail not sought by the questions asked cannot provide a reasonable basis for disbelieving the appellant’s evidence. 

[28]       Second, parents react in many different ways to the unexpected actions of their children.  Even if the appellant spoke to no one and did nothing about the incident, including not changing his bedtime routine, he may have had a good reason for his own inaction.  Or, as the Crown maintains, his inaction could be seen as inconsistent with his denial of a sexual relationship with the complainant.  Either inference was available to the trial judge, but only if the appellant was given an opportunity to explain why he did nothing.  As he was not given that opportunity because neither counsel asked him about it, rejecting his evidence for his supposed inaction was unfair.

[29]       I therefore conclude that the trial judge erred by relying on the appellant’s response to the complainant’s request to touch his penis as a basis for rejecting his evidence. 

(2) S.C.’s Out-of-Court Statement

[30]       The defence elicited S.C.’s statement at the backyard pool, “why don’t you just fuck Dad”.  It sought to show that the appellant’s reaction – shock – was consistent with his innocence.  The trial judge, however, fastened on S.C.’s statement as another basis to reject the appellant’s evidence and conclude that he and the complainant had a sexual relationship:

A finding that there was a relationship between Mr. [T.J.] and [M.C.] makes sense when put in the context of an event that took place in the summer of 2007.  This event was confirmed by both [M.C.] and Mr. [T.J.] as happening.  [S.C.] had returned home from being out and observed the three children peeling Mr. [T.J.]’s sunburned back and she said to [M.C.], “Why don’t you just fuck him?”  While Mr. [T.J.] testified that [M.C.] was shocked by this statement and that he called [S.C.] on it, the only logical inference that one can draw was that [S.C.] knew that something improper was going on between her daughter and Mr. [T.J.].

[31]       The trial judge was not entitled to use S.C.’s statement in this way.  The trial judge implied from S.C.’s words that she “knew that something improper was going on between her daughter and Mr. [T.J.].”   Used in this way, the statement was hearsay because the trial judge used the implied meaning of the words for the truth of their contents: see R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520. Even more problematic, the trial judge went further and used S.C.’s statement as one piece of evidence supporting her finding of a sexual relationship between the appellant and M.C.  

[32]       The Crown submits that S.C.’s statement was admissible under the state of mind exception to the hearsay rule. I disagree. Even if the trial judge had relied on S.C.’s statement merely to determine her state of mind – instead of relying on the statement as evidence of an improper relationship – it would be inadmissible. It does not satisfy the requirements of the state of mind exception to the hearsay rule.

[33]       To be admissible under the state of mind exception, S.C.’s state of mind must be relevant and the statement must be made in a natural manner and not under circumstances of suspicion: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 168. Although S.C.’s knowledge of the alleged relationship between M.C. and the appellant may have been relevant,[2] her statement was not made in circumstances free of suspicion. We do not know the foundation for her statement. It was made just a few months before S.C. and the appellant separated, at a time when their relationship was already strained. S.C. could have misperceived the relationship between her daughter and the appellant, or could even have impliedly lied about the relationship. In these circumstances, her statement was made under “circumstances of suspicion” and was not admissible under the state of mind exception.

[34]       However, as I have said, the trial judge used S.C.’s statement to support her finding of a sexual relationship between M.C. and the appellant. Used in this way, the statement was hearsay and presumptively inadmissible. To be admissible, it had to meet the twin requirements for admissibility: necessity and reliability.  It met neither.  It did not meet the necessity requirement because S.C. was available to testify but was not called as a witness by either the defence or the Crown. As no explanation was provided for the parties’ failure to call her, necessity is not made out.

[35]       The statement did not meet the reliability requirement because, as already discussed, it is unclear what S.C. intended by it. Reading an implied assertion into S.C.’s statement that she knew something improper was going on is no more tenable a reading of her statement than one implying that she made a misleading innuendo because she was angry with the appellant or had misperceived events. The ambiguity in her statement does not allow any reliable conclusion about the implied assertion, if any, contained in it.   As she was not called as a witness and therefore not cross-examined on her statement, any determination of what, if anything, could be implied by it is too unreliable to be admissible: R. v. Esrabian, 2013 ONCA 761, 313 O.A.C. 273, at para. 46.

[36]        In the light of these reliability concerns, the trial judge’s use of S.C.’s statement was highly prejudicial to the appellant. As the Supreme Court emphasized in Starr, at para. 199, by excluding unreliable out-of-court statements, the hearsay rule plays an important role in ensuring trial fairness:

[A] fundamental concern with reliability lies at the heart of the hearsay rule. By excluding evidence that might produce unfair verdicts, and by ensuring that litigants will generally have the opportunity to confront adverse witnesses, the hearsay rule serves as a cornerstone of a fair justice system.

[37]       S.C.’s statement raises all of these reliability concerns. I therefore conclude that the trial judge improperly relied on S.C.’s out-of-court statement as a basis to reject the appellant’s evidence.

D.           conclusion

[38]       These two erroneous bases for rejecting the appellant’s evidence tainted the trial judge’s credibility finding.  Accordingly the appellant’s convictions cannot stand.  I would allow the appeal, set aside the convictions and order a new trial.

Released: April 25, 2014 (“M.R.”)

“John Laskin J.A.”

“I agree. M. Rosenberg J.A.”

“I agree. Gloria Epstein J.A.”