2020 ONCJ 354, 2020 ONCJ 354

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the conse​quences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

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) MANDATORY ORDER ON APPLICATION — 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. . . . 486.6 OFFENCE —

(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. ONTARIO COURT OF JUSTICE

CITATION: R. v. N.S., 2020 ONCJ 354 DATE: 2020 08 12 BETWEEN: HER MAJESTY THE QUEEN — AND — N.S. Before Justice M.K. WENDL heard on July 14 & August 12, 2020 Reasons for Judgment on Admissibility of Reporting Demeanour Evidence released on August 12, 2020 J. Forward............................................................................................. counsel for the Crown P. Valli..................................................................................... counsel for the defendant N.S. WENDL J.: [ 1 ] N.S. is charged with sexual assault.

The Crown wants to introduce into evidence the demeanour of the complainant when she reported to the incident to her mother, roughly two months after the fact. The Crown asserts that the complainant’s demeanour upon reporting is a piece of circumstantial evidence this Court can use to support her credibility. [ 2 ] The defence objects to the admission of this evidence. It argues that the prejudicial effect exceeds the probative value because it leads to the inference that since she was upset, she must be truthful.

Admissibility of Demeanour Evidence [ 3 ] The complainant alleges that in the early part of January 2019 she went to the accused’s residence where she was sexually assaulted by him. The accused has denied the incident. [ 4 ] Around two months after the event, the complainant, M.B., reported it to her mother. She was visibly upset when she did so. Her mother testified that when she reported the incident, she seemed frightened and scared. Her mother also stated that “she wasn’t herself”, she was crying, seemed distraught and almost embarrassed.

Her mother further testified that she had never seen her daughter in a state like this. It differed from other times that she was upset in the following manner: “she was scared, fearful, very hesitant to speak to me, and we were very close and open about a lot of – about everything. So, the fact that she was being resistant towards me was surprising.

Normally she’s able to speak fluently to me without any issues and this time it was – there was a lot of fear to tell.” [ 5 ] Courts have increasingly shied away from the use of demeanour evidence in their credibility analysis [1] , however, post-offence demeanour evidence of the complainant remains presumptively admissible [2] . Therefore, to exclude the evidence from trial the defence must demonstrate that the prejudicial effect outweighs the probative value. [ 6 ] The first way in which the Crown proposes that the probative value outweighs the prejudicial effect is to support M.B.’s credibility generally.

Basically, the Crown argues that M.B. testified that she was upset when she reported to her mother and her mother confirms that. Therefore, the Crown submits, the evidence supports an inference that she is credible, generally.

[ 7 ] The second way the Crown posits that the probative value outweighs the prejudicial effect is to support the assertion that a sexual assault took place. Essentially, they argue that M.B.’s mother’s evidence, taken at face value, indicates that her daughter’s behaviour, when reporting, was uncharacteristic for her.

As a result, this supports the assertion that something unusual happened to M.B., i.e. she was sexually assaulted. [ 8 ] The defence position in relation to the first ground advanced by the Crown is that they are not challenging the fact that the complainant cried when reporting the incident to her mother and, therefore, it is not an issue at trial and the mother’s evidence is not relevant.

On the second ground posited by the Crown, the defence argues that the evidence of M.B.’s mother should be excluded since there is no temporal nexus between the reporting and the events (they are too far apart), and there could be other explanations for the emotional upset.

Given the foregoing, maintains the defence, the admission of the evidence would be prejudicial to the accused because it leads to the inference that the complainant must be truthful because of her demeanour. [ 9 ] First, it must be remembered throughout this analysis that the defence bears the burden to exclude presumptively relevant admissible evidence of demeanour. However, in relation to the first ground posited by the Crown, that the evidence of M.B.’s mother is supportive of M.B.’s credibility generally, it is my view that it is not relevant to a fact at issue and, therefore, not admissible.

Remembering first principles, evidence is relevant and probative if it goes to a fact at issue [3] . The defence does not take issue with the fact that the complainant was upset and crying at the time of reporting. The defence objects to assertion by the Crown that the fact she was crying and upset upon reporting supports the fact that a sexual assault took place.

Therefore, I find that the evidence of M.B.’s mother is not relevant on this issue and, even if it were, it would be entitled to little or no weight. [ 10 ] In relation to the second argument, the Court of Appeal in J.A. [4] found that the demeanour of the complaint shortly after the incident was properly admissible as evidence of a sexual assault. Citing Varcoe [5] , the Court stated: K.F.'s emotional upset was manifest the day following the assault; it was apparent to and noted by her family.

Such evidence is admissible and may be used to support a complainant's evidence of a sexual assault. [ 11 ] However, based on A.J . and Varcoe , it seems that a condition precedent for the admission of the post-offence demeanour evidence of the complainant is proximity in time. This is not the case here. [ 12 ] Also, it must be pointed out that the cause for the upset demeanour of the complainant in the case at bar is different then in A.J . and Varcoe .

In A.J and Varcoe , it was the immediate aftermath of the event, within a day of the assault itself, that caused the change in demeanour of the complainants, whereas here, the immediate catalyst for the complainant’s demeanour seems to be the recounting of the events to her mother and her fear to do so, not necessarily the event itself.

Therefore, the basis for admission of the evidence in A.J. and Varcoe , proximity in time and the emotional upset in the immediate aftermath of the incident, are not present in this case. [ 13 ] The Crown further argues that even absent the temporal nexus, the evidence of upset demeanour is relevant because it was out of character for M.B.

Hence, the value of the evidence is not in stereotypical reasoning, that the victim of a sexual assault must act in a certain way, but in the fact that this was a unique experience specific to M.B. [ 14 ] While this argument has appeal, my concern is with the exact nature of this evidence. What was unique about the incident to her mother was not the fact that she was upset, but that she was, in her mother’s perception, “scared, fearful, very hesitant to speak” and that there was “a lot of fear to tell”.

This, in my view, speaks to the accused’s actual inner mindset and not her demeanour. [ 15 ] That being said, while I agree that it may be difficult to delineate inner emotional mindset and demeanour, and there is most likely an overlap, even if “fear to tell” can be qualified as demeanour evidence, it is difficult to see how this piece of evidence supports her credibility. At best it would be potentially probative on the issue of a delay in reporting, an issue which has not been raised.

Put another way, evidence of her upset which has a genesis in her fear to tell does not make her more or less credible or reliable. [ 16 ] Finally, I am mindful the Supreme Court’s comment in J.A. : “ that it would be dangerous for this Court to uphold the convictions and thus resolve the credibility issue in this case on the strength of demeanor evidence” [6] [ 17 ] Given this warning, this Court cannot see how her demeanour evidence would impact its analysis one way or another.

In assessing the evidence in its totality, if this Court’s analysis of the complainant’s testimony gave rise to credibility and reliability issues so as to make her not credible or reliable in the view of the Court, the demeanour evidence, even if admissible, could not resolve the credibility issues. On the other hand, if she was to be found credible and reliable, her demeanour evidence would add nothing to the analysis. Conclusion [ 18 ] The evidence of the complainant’s demeanour upon reporting the incident to her mother is not admissible given that the probative value does not exceed the prejudicial effect.

Released: August 12 th , 2020

Signed: Justice M.K. Wendl [4] R. v. A. (J.) 2010 ONCA 491