Court File and Parties

Citation: R. v. Flader, 2008 ONCA 275 Date: 2008-04-15 Docket: C45753

Court of Appeal for Ontario Before: Doherty, Feldman and Rouleau JJ.A.

Between: Her Majesty the Queen (Respondent) and Robert Flader (Appellant)

Counsel: Edward Prutschi for the appellant Peter Scrutton for the respondent

Heard and orally released: April 8, 2008

On appeal from the conviction entered by Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury, dated May 9, 2006 and the sentence imposed on July 14, 2006.

Endorsement

[1] In the circumstances, the two pairs of underwear found in the possession of the appellant when he was arrested, one a woman’s size underwear and the other a children’s size underwear, were relevant to the charge of possession of child pornography. No objection was made to the relevance of this evidence at trial.

[2] We have considered the submission, also made for the first time on appeal, that the prejudicial effect of this evidence outweighed its probative value and that the evidence should have been excluded on that basis. We are not satisfied that the prejudicial effect would necessarily have outweighed the probative value of the evidence in the circumstances of this case. It cannot be said that the trial judge erred in failing to take the initiative and exclude the evidence absent any request that she do so. Nor has the appellant demonstrated any miscarriage of justice.

[3] After the evidence was received, the trial proceeded. The appellant testified and offered an explanation for his possession of the underwear. He explained that both pairs of underwear belonged to his girlfriend and that he had possession of them to mark certain significant events. Counsel’s submissions to the jury tracked the evidence that had been led by the Crown and from the appellant. Both counsel put to the jury the inferences that they argued could and could not be drawn from the appellant’s possession of the underwear.

[4] In her instructions, the trial judge outlined the positions taken by counsel before the jury. She did not give any limiting instruction cautioning against improper propensity reasoning based on the appellant’s possession of the underwear. Counsel did not request a limiting instruction.

[5] Given the way this case unfolded and the position that was taken before the jury on behalf of the appellant, we do not think the limiting instruction, argued on appeal, was necessary. In our view, the instruction would have been unhelpful, if not detrimental to the position taken on behalf of the appellant at trial with respect to the reason for his possession of the underwear.

[6] The appeal from conviction is dismissed.

[7] The sentence imposed was fit. The trial judge considered and balanced the mitigating and aggravating features of this case. We cannot say that the sentence imposed reflects either an error in principle or is demonstrably unfit. The appeal from sentence is dismissed.

“Doherty J.A.”

“K. Feldman J.A.”

“Paul Rouleau J.A.”