R. v. H.P.S., (2012) 288 O.A.C. 164 (CA)

• Jurisdiction: Ontario
• Judge: Laskin, Cronk and Blair, JJ.A.
• Neutral Citation: 2012 ONCA 117
• Citation: (2012), 288 O.A.C. 164 (CA),2012 ONCA 117,280 CCC (3d) 500,92 CR (6th) 303,[2012] CarswellOnt 1914,[2012] OJ No 748 (QL),288 OAC 164,[2012] O.J. No 748 (QL),288 O.A.C. 164,(2012), 288 OAC 164 (CA)
• Date: 02 November 2011
• Court: Court of Appeal (Ontario)

R. v. H.P.S. (2012), 288 O.A.C. 164 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. FE.028

Her Majesty the Queen (respondent) v. H.P.S. (appellant)

(C50224; 2012 ONCA 117)

Indexed As: R. v. H.P.S.

Ontario Court of Appeal

Laskin, Cronk and Blair, JJ.A.

February 22, 2012.

Summary:

The accused was convicted of a variety of charges involving physical and sexual abuse against his step-daughter/niece that occurred between 1980 and 1984, when the stepdaughter was between eight and 12 or 13 years old. He was also convicted of additional counts of sexual assault and assault on the step-daughter that occurred in 1989. The Crown's case consisted entirely of the evidence of the step-daughter, who was 36 years old when she testified. The accused appealed, asserting that the trial judge failed to conduct a proper reliability analysis respecting the step-daughter's testimony, particularly in light of the historical nature of the allegations and the absence of evidence in certain important areas.

The Ontario Court of Appeal, Laskin, J.A., dissenting, allowed the appeal and ordered a new trial.

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 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused was convicted of a variety of charges involving physical and sexual abuse against the complainant that occurred between 1980 and 1984, when the complainant was between eight and 12 or 13 years old - He was also convicted of counts of sexual assault and assault that occurred in 1989 - The Crown's case consisted entirely of the evidence of the complainant, who was 36 years old when she testified - The Ontario Court of Appeal held that the trial judge failed to properly apply reasonable doubt principles to the evidence or the absence of evidence - The judge conducted a piecemeal approach to analysing the complainant's evidence without standing back and asking himself whether, even though he accepted her explanations, the various factors that could favour the defence taken together could nonetheless give rise to a reasonable doubt and, more specifically, whether the absence of the evidence in material areas could be the basis for a reasonable doubt - The accused did not have to prove anything - The judge's approach to the absence of documentary evidence to support the complainant's testimony that she had reported her abuse to the police and to school officials illustrated the error - The accused relieved heavily, as a compelling factor giving rise to a reasonable doubt, on the absence of any evidence in the form of police or school records confirming that the complainant had reported the abuse to those authorities or indicating that they had taken any follow-up steps as a result - Instead of considering the absence of such evidence from the perspective of asking whether it gave rise to a reasonable doubt, his reasoning suggested that he had not been persuaded by the defence that no records existed to contradict the complainant's testimony and, therefore, concluded that she had in fact reported the abuse - His next step in the analysis was to conclude that her testimony as to the allegations of abuse was confirmed - That was not a permissible line of reasoning because it failed to evaluate the inconsistencies and contradictions and the absence of evidence in important areas, through the lens of the doctrine of reasonable doubt - See paragraphs 52 to 57.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused was convicted of a variety of charges involving physical and sexual abuse against the complainant that occurred between 1980 and 1984, when the complainant was between eight and 12 or 13 years old - He was also convicted of counts of sexual assault and assault that occurred in 1989 - The Crown's case consisted entirely of the evidence of the complainant, who was 36 years old when she testified - The Ontario Court of Appeal held that the trial judge erred in his approach to assessing the reliability of the complainant's evidence - The court's concern was heightened by the judge's error in rejecting the accused's position that school authorities and the police would have had an obligation to report the complainant's allegations to the Children's Aid Society and that, if she had in fact reported the abuse, there would have been some evidence of follow-up by the authorities - He did so based on there being no evidence that disclosing things to the authorities was a practice or requirement back in the mid-80's - The judge's error was significant for his assessment of the reliability of the complainant's evidence - At the relevant time, the Child and Family Services Act mandated that such officials report suspicions of child abuse - That requirement was not a matter of practice (which might require evidence), but a matter of law (which did not) - It therefore seemed unlikely that, had the complainant reported the abuse, there would be no record of the report or of any follow-up to that report on the part of both the police and the school authorities - This was a powerful consideration that needed to be addressed in the reasonable doubt analysis - Moreover, the judge's approach could only have tainted his finding that the complainant had in fact reported her allegations to the authorities - That tainted finding, in turn appeared to have played a significant role in the judge's finding that the complainant's testimony was credible and reliable and ultimately, that the accused was guilty - See paragraphs 52 to 61.

Criminal Law - Topic 4377.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding reliability of witnesses' testimony - [See second Criminal Law - Topic 4351].

Criminal Law - Topic 4377.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding reliability of witnesses' testimony - The accused was convicted of a variety of charges involving physical and sexual abuse against the complainant that occurred between 1980 and 1984, when the complainant was between eight and 12 or 13 years old - He was also convicted of counts of sexual assault and assault that occurred in 1989 - The Crown's case consisted entirely of the evidence of the complainant, who was 36 years old when she testified - The Ontario Court of Appeal held that the trial judge failed to undertake a proper reliability assessment - The focus of his reasons was on the complainant's credibility in the sense of sincerity and believability - Even if the complainant appeared to be sincere, truthful and honest, and even if the complainant believed what she was saying, it did not necessarily follow that what she was saying was reliable - This was particularly important where the accused was facing charges based entirely on allegations of historical physical and sexual abuse and where there were serious reliability issues - Memory was fallible - In such cases, particular caution and scrutiny were called for in approaching the reliability of evidence - It was a sensible idea that trial judges should consider the need to self-instruct on the frailties of evidence concerning events of the distant past - Every case depended upon its own circumstances and a formal instruction did not necessarily have to be given - However, where, as here, there were objective reasons to scrutinize carefully the reliability of a witness whose testimony was central to the proof of guilt, the judge's reasons should demonstrate that he or she was alert to the frailties of, and the risks associated with, such evidence and to the need to address it with careful scrutiny - See paragraph 25 to 45.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See second Criminal Law - Topic 4377.1].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 5].

R. v. R.W.B. (2003), 174 O.A.C. 198 (C.A.), refd to. [paras. 31, 72].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 32].

R. v. McGrath, [2000] O.J. No. 5735 (S.C.), refd to. [para. 35].

R. v. W.S. (1994), 70 O.A.C. 370; 18 O.R.(3d) 509 (C.A.), refd to. [para. 35].

R. v. Norman (D.L.) (1993), 68 O.A.C. 22; 16 O.R.(3d) 295 (C.A.), refd to. [para. 35].

R. v. B.M. (1998), 115 O.A.C. 117; 42 O.R.(3d) 1 (C.A.), refd to. [para. 38].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [paras. 49, 77].

R. v. H.C. (2009), 244 O.A.C. 288; 241 C.C.C.(3d) 45; 2009 ONCA 56, refd to. [para. 70].

R. v. Betker (A.) (1997), 100 O.A.C. 81; 33 O.R.(3d) 321; 115 C.C.C.(3d) 421 (C.A.), refd to. [para. 71].

Authors and Works Noticed:

Paciocco, David M., and Struesser, Lee, The Law of Evidence (5th Ed. 2010), p. 290 [para. 36].

Rosenberg, Marc, Issues Arising in Criminal Prosecution for Distant Events (1995), paras. 126, 127 [para. 43, footnote 3].

Counsel:

Mark Halfyard, for the appellant;

Christine Bartlett-Hughes, for the respondent.

This appeal was heard on November 2, 2011, by Laskin, Cronk and Blair, JJ.A., of the Ontario Court of Appeal. The decision of the court was released on February 22, 2012, with the following opinions:

Blair, J.A. (Cronk, J.A., concurring) - see paragraphs 1 to 63;

Laskin, J.A., dissenting - see paragraphs 64 to 91.