W A R N I N G

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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.

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. 205, c. 32, s. 15.

CITATION: R. v. J.A.A., 2009 ONCA 881

DATE: 20091211

DOCKET: C49992

COURT OF APPEAL FOR ONTARIO

Moldaver, Simmons and Blair JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

J. A. A.

Appellant

James Marentette, for the appellant

Melissa Adams, for the respondent

Heard and endorsed: December 8, 2009

On appeal from conviction by Justice G. E. Taylor of the Superior Court of Justice dated April 15, 2008 and sentence imposed June 24, 2008.

APPEAL BOOK ENDORSEMENT

[1] The appellant moves to set aside his convictions for sexual assault and sexual exploitation on the basis that the Crown split its case when, after the appellant testified in-chief, the Crown on request, was permitted to cross-examine the him on a segment of his very lengthy statement to the police (the statement lasted over five hours and consumed over 110 pages of transcript). According to the appellant, the impugned portion of the statement amounted to and was used by the Crown as an admission of guilt, and as such, the statement should have been led by the Crown in its case in-chief. The appellant further contends that if the cross-examination was permissible, the jury should have been told that the statement could only be used to assess the appellant’s credibility and not as original evidence. Finally, the appellant submits that if the impugned portion of the statement could be used as original evidence, as the trial judge instructed the jury it could, the entire statement had to be put into evidence.

[2] Much as the appellant raises legal reasons of interest, the submissions that he makes on appeal bear virtually no relationship to what occurred at trial.

[3] At trial, defence counsel did not object to the impugned cross-examination; nor did she object to the trial judge’s instructions on the uses the jury could make of it; nor did she ask that the entire statement or any additional portions of it be introduced.

[4] Notably, the trial judge expressed concerns about the propriety of the impugned cross-examination. Indeed, he went so far as to ask defence counsel if she wanted a mistrial. Defence counsel, in full consultation with the appellant, specifically declined the offer.

[5] In his charge, as indicated, the trial judge instructed the jury that the statement could be used to assess the appellant’s credibility and also as original evidence. In doing so, however, he suggested to the jury that he had difficulty seeing that what the appellant had said in his statement (that he didn’t remember doing anything to the complainant) differed from his testimony. He also pointed out that the passage from the statement involved a single question during the course of a five-hour interview. Finally, he reminded the jury that throughout the balance of the interview, the appellant denied sexually assaulting the complainant or improperly touching her in any way.

[6] We share the trial judge’s scepticism and have difficulty conceiving that the impugned statement would be construed as an admission.

[7] In the circumstances, we are not persuaded that the interests of justice warrant a new trial. The position taken by the appellant at trial was considered and informed and we see no basis for concluding that it was unreasonable, particularly in the absence of an allegation that defence counsel at trial was incompetent. In short, we are satisfied that the appellant received a fair trial.

[8] Accordingly, we would dismiss the appeal from conviction.

[9] The appeal from sentence is dismissed as abandoned.