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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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. G.D.C., 2010 ONCA 381
DATE: 201005026
DOCKET: C50356
COURT OF APPEAL FOR ONTARIO
Feldman, Juriansz and Watt JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent
and
G.D.C.
Appellant
Sarah Han, for the appellant
Robin Flumerfelt, for the respondent
Heard and released orally: May 17, 2010
On appeal from convictions by Justice Harrison Arrell of the Superior Court of Justice, dated October 29, 2008.
ENDORSEMENT
[1] The appellant appeals his convictions on four counts of sexual exploitation of his teenaged step-daughter when she was between 14 and 18 years of age.
[2] The first ground of appeal is that the guilty verdicts were inconsistent with the four acquittals entered by the jury for sexual assault and sexual interference of the step-daughter when she was 13 years old, the complainant having testified that the sexual relationship between herself and the appellant began when she was 13 and just continued in the same way until she was almost 18 years old.
[3] We would not give effect to this ground of appeal. If the jury accepted that the appellant wrote the 30 e-mails that effectively acknowledged the sexual relationship as it was coming to an end, they were entitled to use that evidence to confirm the complainant’s evidence in respect of the exploitation charges relating to the period when she was between 14 and 18 years old. This is so even if they were not satisfied that the relationship began when she was 13 and still living in the Murray Street home with her mother, before the appellant separated from her mother and the complainant began to reside with him in his parents’ home.
[4] The second ground of appeal relates to the Crown’s closing address and his invitation to the jury to compare the appellant’s acknowledged e-mail message with the disputed ones in terms of the similarity of the misspelling of certain words and the irregular spacing of some other words. The appellant refers to two cases, Scott v. Crerar, [1887] O.J. No. 15 (Ont. C.A.) and King v. Law, [1909] M.J. No. 3 (Man. C.A.), which suggest that expert evidence is required when the jury is asked to draw inferences from the style of words used. In our view, those case are distinguishable. In this case, there was direct evidence that the jury was entitled to accept that the appellant wrote the emails, whereas in the cases cited, there was no direct evidence, and the jury was asked to make the finding of authorship based on the comparison itself.
[5] We also observe that Crown counsel advanced that argument not as a basis of proof of authorship, but only to respond to a defence theory that the complainant concocted the e-mails. This defence position was advanced despite the absence of evidence of concoction and the failure to cross-examine the complainant about her authorship of the e-mails.
[6] As a related matter, the appellant says that the trial judge made a Browne v. Dunn error by allowing the Crown to make the argument regarding the wording of the e-mails without giving the appellant an opportunity to answer the suggestion in cross-examination. In our view, this is not a Browne v. Dunn error. The appellant could have had no comment on the wording of the e-mails he claims he did not author.
[7] The third ground of appeal is that the trial judge erred by failing to give a Vetrovec warning regarding the evidence of the complainant as an alleged unsavoury witness. Assuming, without accepting, that a Vetrovec warning is available against a complainant in a sexual assault case, a Vetrovec warning applies only where a witness is established as unsavoury in some way beyond the issues of credibility to be determined by the jury based on the evidence in the case. Here, the claimed basis for a Vetrovec warning were the inconsistencies in the complainant’s evidence in this very case.
[8] Finally, we note that no objection was made by defence counsel at trial on any of these issues. Although this is not necessarily fatal, it is indicative of the lack of importance that counsel saw in the issues, or that his decision not to object may have been for tactical reasons.
[9] In the result, the appeal against conviction is dismissed. The sentence appeal was abandoned and is dismissed as abandoned.
Signed: “K. Feldman J.A.”
“R. G. Juriansz J.A.”
“David Watt J.A.”