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:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20040415

DOCKET: C36421

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – A. C. (Appellant)

BEFORE:

GOUDGE, MacPHERSON AND CRONK JJ.A.

COUNSEL:

Michael Lomer

for the appellant

Mary-Ellen Hurman

for the respondent

HEARD:

March 29, 2004

On appeal from the convictions entered by Justice John Hamilton of the Superior Court of Justice, sitting with a jury, dated April 6, 2001.

E N D O R S E M E N T

[1] The appellant was charged with sexual assault, touching for a sexual purpose a person under 14 years of age, and invitation to touch for a sexual purpose a person under 14 years of age. All three counts involved the same complainant. After a trial by judge and jury, the appellant was convicted on all three counts.

[2] He appeals his conviction, saying that the trial judge improperly curtailed his counsel's cross-examination of the complainant and his mother. The focus of the appellant's submissions was on the cross-examination of the complainant at the point where his counsel (not Mr. Lomer) sought to question the complainant about a porn movie which he had in his possession. Counsel asked who it belonged to. The complainant answered that he believed it belonged to the appellant A. C. Counsel briefly pursued this, to the point where the complainant was speculating that the porn movie was stolen or taken from Mr. C.'s house. At that point, the trial judge indicated that this was not relevant and stopped the line of questioning. Counsel moved on and did not attempt to return to the subject of the porn movie.

[3] At the conclusion of her cross-examination of the complainant, defence counsel confirmed her view that the trial judge's ruling was about precluding questions concerning "returning a porno movie". Perhaps because of this view, counsel at no time sought to cross-examine the complainant or his mother about how the porn movie got to the appellant's house. Certainly her submissions following the charge made it clear that she had taken this meaning from the ruling.

[4] Before us, the appellant argued that the ruling was to this effect and that, as a result, the appellant was prevented from eliciting evidence from the complainant or his mother to strengthen the credibility of his own evidence that the complainant's mother sent the porn movie over to the appellant's house with the complainant. In his charge, the trial judge flagged this evidence of the appellant for the jury as something to consider in evaluating his credibility, because of its arguable improbability.

[5] In our view, the trial judge's ruling cannot reasonably be taken to mean what the appellant argues. The trial judge simply prevented counsel from exploring where the porn movie came from, not how it might have got from the complainant's house to the appellant's house. The source of the porn movie was indeed irrelevant to the trial. The fact that the ruling may have been misunderstood cannot turn a relatively straightforward ruling into an error in the conduct of the trial.

[6] Since counsel did not pursue the question with the complainant or his mother, the trial judge had only the appellant's evidence on how the porn movie got to the appellant's house. The trial judge was entitled to comment on this evidence in his charge as he did. His comments concerning this aspect of the appellant's evidence did not mislead the jury.

[7] This ground of appeal therefore fails.

[8] The appellant also addressed several other interventions by the trial judge but only very briefly. In our view, none of these intervention goes beyond an attempt to clarify the evidence. They do not constitute improper interventions by the trial judge.

[9] The appeal must be dismissed.

"S.T. Goudge J.A."

_ "J.C. MacPherson J.A."

"E.A. Cronk J.A."