WARNING
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. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(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).
486.4(2) 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.
486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
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.
486.6(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. 2005, c. 32, s. 15.
Court of Appeal for Ontario
Panel: Feldman, Lauwers and Nordheimer JJ.A.
Between
Her Majesty the Queen Respondent
and
A.C.Z. Appellant
Counsel:
- John Rosen and Lindsay Daviau, for the appellant
- Michael Perlin, for the respondent
Heard and released orally: January 28, 2019
On appeal from: the conviction entered on February 16, 2017, by Justice Tamarin Dunnet of the Superior Court of Justice.
Oral Endorsement
1A.C.Z. appeals his conviction, after a judge alone trial, on a single charge of sexual interference. Central to his appeal is the appellant's contention that the trial judge improperly curtailed his counsel's cross-examination of the complainant's mother. The appellant also brings an application to admit fresh evidence relating to this issue.
2The facts underlying the conviction arise out of the appellant's alleged sexual abuse of his nine year old stepdaughter. The complainant alleges that on a number of occasions, when the appellant was alone with her, he sexually abused her by touching her breasts and her vagina. The complainant did not report this abuse at the time. Rather, some years later, when she was a teenager, she revealed this abuse as a result of issues that arose regarding her performance at school.
3At trial, the defence contended that the complainant had been encouraged by her mother to make false allegations against the appellant because of family law proceedings that were ongoing between the mother and the appellant. One of the issues was whether the appellant was upset with the mother regarding her claims for child support. During the cross-examination of the mother, the appellant's counsel tried to put before the mother receipts that showed that the appellant had made numerous cash payments for child support. Crown counsel objected to the line of questioning on the basis that the questioning was on a "collateral matter". The trial judge agreed and curtailed that line of questioning.
4We agree, as does counsel for the respondent, that the collateral fact rule had no application to the issue raised: R. v. A.C., 2018 ONCA 333. That does not change the fact that a trial judge has a wide discretion to control trial proceedings. This includes controlling the scope of the questioning of witnesses whether in chief or in cross-examination. While the right of cross-examination is to be jealously protected and broadly construed, it is not unlimited: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 44-45.
5We see no unfairness that arose from the curtailment of the cross-examination. We reach this conclusion for two main reasons.
6First, as the trial judge recognized, the central issue fell to be determined on the evidence of the complainant. The trial judge found the complainant's evidence to be "clear and compelling". The issue that the appellant raises regarding the mother's evidence does not impact on that conclusion.
7Second, the trial judge recognized that there were problems with the mother's evidence. Again, however, the mother's evidence was largely peripheral to the central issue. At most, her evidence provided corroboration for the complainant's evidence that there were times when she was alone with the appellant such that the abuse could have occurred. The trial judge was entitled to accept the mother's evidence as providing that corroboration while recognizing the other problems with the mother's evidence.
8In terms of the fresh evidence, we would not admit it because, for the reasons we have already given, it fails to satisfy either the second or fourth factors from R. v. Palmer, [1980] 1 S.C.R. 759, that is, it does not bear upon a decisive or potentially decisive issue in the trial nor could it be expected to have affected the result.
Conclusion
9The appeal is dismissed.
K. Feldman J.A. P. Lauwers J.A. I.V.B. Nordheimer J.A.