R. v. H.C.,

• Jurisdiction: Ontario
• Judge: Rosenberg, Armstrong and Watt, JJ.A.
• Neutral Citation: 2009 ONCA 56
• Citation: (2009), 244 O.A.C. 288 (CA),2009 ONCA 56,241 CCC (3d) 45,[2009] OJ No 214 (QL),244 OAC 288,244 O.A.C. 288,(2009), 244 OAC 288 (CA),[2009] O.J. No 214 (QL)
• Date: 10 June 2008
• Court: Court of Appeal (Ontario)

R. v. H.C. (2009), 244 O.A.C. 288 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JA.127

Her Majesty the Queen (respondent) v. H.C. (appellant)

(C45623; 2009 ONCA 56)

Indexed As: R. v. H.C.

Ontario Court of Appeal

Rosenberg, Armstrong and Watt, JJ.A.

January 20, 2009.

Summary:

The accused was found guilty of sexual exploitation of his step-granddaughter. The accused appealed from the conviction.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses - The accused was found guilty of sexual exploitation of his step-granddaughter, K.F. - K.F. was 10 years old when she testified on a promise to tell the truth - The accused appealed from the conviction, arguing that the trial judge made a finding of guilt on the basis of a favourable conclusion about the complainant's credibility, based exclusively on her demeanour as a witness, without proper assessment of the reliability of her evidence - The Ontario Court of Appeal rejected this ground of appeal - The court stated that "A fair reading of the trial judge's reasons in their entirety does not support the appellant's claim that, satisfied that K.F. was credible, the trial judge simply proceeded to a finding of guilt without any consideration of the reliability of K.F.'s testimony and the extent of its persuasive force when held up against the standard of proof required in a criminal case. The trial judge considered several factors that related to K.F.'s ability to accurately observe, recall and recount the events that she claimed occurred" - See paragraphs 37 to 48.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See Criminal Law - Topic 4300 ].

Criminal Law - Topic 5462

Evidence and witnesses - Evidence of children - Credibility - The accused was found guilty of sexual exploitation of his step-granddaughter, K.F. - K.F. was 10 years old when she testified on a promise to tell the truth - The accused appealed from the conviction, arguing that the trial judge subjected the accused's evidence to a higher standard of scrutiny than that applied to the complainant's evidence - The Ontario Court of Appeal rejected this ground of appeal - The court stated, inter alia, that "In his assessment of the evidence of K.F., the trial judge was not required to apply the same criteria applicable to adult witnesses. As he was obliged to do, he considered K.F.'s evidence in the context of her age at the time of the events. He found her evidence met the standard of proof required" - See paragraphs 58 to 66.

Evidence - Topic 4021

Witnesses - General - Credibility - General - [See Criminal Law - Topic 4300 ].

Evidence - Topic 5231

Witnesses - Children (incl. corroboration) - Evidence of children - General - [See Criminal Law - Topic 5462 ].

Cases Noticed:

Browne v. Dunn (1893), C.R. 67 (H.L.), refd to. [para. 33].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 34].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514 (C.A.), refd to. [para. 41].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200, refd to. [para. 42].

R. v. A.S. (2002), 159 O.A.C. 89; 165 C.C.C.(3d) 426 (C.A.), refd to. [para. 42].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134, refd to. [para. 42].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 227 C.C.C. (3d) 129; 2008 SCC 2, refd to. [para. 51].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 51].

R. v. R.E.M. (2008), 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 235 C.C.C.(3d) 290; 2008 SCC 51, refd to. [para. 55].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 56].

R. v. Owen (W.) (2001), 150 O.A.C. 378 (C.A.), refd to. [para. 62].

R. v. Minuskin (S.) (2003), 180 O.A.C. 255; 68 O.R.(3d) 577 (C.A.), refd to. [para. 62].

Counsel:

Allan G. Letourneau, for the appellant;

John Patton, for the respondent.

This appeal was heard on June 10, 2008, before Rosenberg, Armstrong and Watt, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Watt, J.A., and was released on January 20, 2009.