Jun 1, 2020

MLB Headnote and Key Numbers

R. v. C.K-D., 2016 ONCA 66 (CanLII)

R. v. C.K-D. (2016), 343 O.A.C. 363 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JA.025

Her Majesty the Queen (respondent) v. C.K-D. (appellant)

(C59503; 2016 ONCA 66)

Indexed As: R. v. C.K-D.

Ontario Court of Appeal

Sharpe, Hourigan and Benotto, JJ.A.

January 25, 2016.

Summary:

A jury convicted the accused of sexual interference and sexual assault. The latter conviction was conditionally stayed under the Kienapple principle. The accused was sentenced to six months' imprisonment followed by two years' probation. The accused appealed his convictions on the ground that the trial judge erred in instructing the jury that they should assess the credibility of the complainant as a 12 year old (age of alleged offence) and not as a 17 year old (age when she testified).

The Ontario Court of Appeal, Benotto, J.A., dissenting, allowed the appeal, set aside the convictions and conditional stay, and ordered a new trial on both counts.

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 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - A jury found the accused guilty of sexual interference and sexual assault - The alleged offences occurred in 2009 when the complainant was 12 years of age - At trial, the complainant was 17 years of age - At issue was whether the trial judge erred in instructing the jury that "it is the memory of a 12 year old that you are really considering", which the accused argued could lead the jury to believe that they should assess the complainant's credibility (on all matters, not just peripheral matters) as a 12 year old, not as a 17 year old - The Ontario Court of Appeal allowed the appeal and ordered a new trial - The trial judge may have intended to convey to the jury that the complainant formed her memory of the assault at age 12 and that the challenged instruction was meant to be limited to peripheral matters, not her credibility generally - The court stated that "this statement could be interpreted to mean that the jury was obligated to assess [the complainant's] credibility as if she was 12 years old. At the very least, the statement, in the context of what was otherwise a correct instruction, would have been a source of confusion for the jury on the critical issue in the trial, being the assessment of [the complainant's] credibility" - See paragraphs 1 to 27.

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See Criminal Law - Topic 4377].

Cases Noticed:

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

R. v. A.M. (2014), 325 O.A.C. 365; 2014 ONCA 769, refd to. [para. 17].

R. v. Araya (N.), [2015] 1 S.C.R. 581; 468 N.R. 114; 329 O.A.C. 1; 2015 SCC 11, refd to. [para. 22].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111, refd to. [para. 43].

Counsel:

C.K-D., in person;

Lou Strezos, duty counsel;

Michael Bernstein, for the respondent.

This appeal was heard on October 7, 2015, before Sharpe, Hourigan and Benotto, JJ.A., of the Ontario Court of Appeal.

On January 25, 2016, the judgment of the Court of Appeal was released and the following opinions were filed:

Hourigan, J.A. (Sharpe, J.A., concurring) - see paragraphs 1 to 27;

Benotto, J.A., dissenting - see paragraphs 28 to 53.