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. 486.4(1), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) 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 subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) 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) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(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.
(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).
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. 2005, c. 32, s. 15.
CITATION: R. v. Martin, 2010 ONCA 527
DATE: 20100723
DOCKET: C50103
COURT OF APPEAL FOR ONTARIO
Doherty, Gillese and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jamie Martin
Applicant (Appellant)
Nicholas A. Xynnis, for the appellant
Grace Choi, for the respondent
Heard and orally released: July 19, 2010
On appeal from the conviction entered by Justice Nadeau of the Superior Court of Justice dated March 4, 2008.
ENDORSEMENT
[1] There are three grounds of appeal. We would not give effect to any of them.
I
Did the trial judge fail to give adequate consideration to the exculpatory portions of the out-of-court statements made by the appellant?
[2] The trial judge correctly stated the law. The appellant’s statements, introduced into evidence by the Crown, were evidence potentially for and against the appellant. The trial judge considered the evidentiary value of the statements in the context of the Crown’s argument that the statements provided evidence of consciousness of guilt. He concluded that the statements were probative only of the fact that the appellant may have lied to the police during these interviews. Consequently, he determined that the statements were of no value to the Crown.
[3] It is true that the trial judge did not repeat the same exercise in the context of considering the value of the same evidence to the defence. However, it is clear that he would have reached the same conclusion. On the trial judge’s analysis, the only inference that could be drawn from the totality of the statements, including the exculpatory portions, was that the appellant may have lied to the police. That inference was of no assistance to the defence.
II
Did the trial judge apply different levels of scrutiny when addressing the case for the defence and the case for the Crown?
[4] This ground of appeal is often advanced. In this case, the trial judge expressly cautioned himself against doing what the appellant says he did. The trial judge outlined the defence evidence. The trial judge addressed parts of that evidence, particularly the testimony of two friends of the complainant, in some detail. It is clear that he regarded this evidence as potentially the most cogent part of the case for the defence.
[5] Other than summarizing the evidence, the trial judge made no specific reference to the testimony that the appellant and the complainant seemed to get along well during the years in which the alleged sexual misconduct occurred. In the context of the trial judge’s other findings made after a careful analysis of the complainant’s evidence and the similar fact evidence, the defence evidence that the complainant and the appellant seemed to get along well was of little, if any, value. The trial judge could have accepted that evidence without in any way affecting his finding that despite their apparent friendly relationship, the appellant was sexually assaulting the young complainant. The failure to specifically refer to this evidence was ultimately of no significance and did not constitute reversible error.
III
Did the trial judge err in admitting the similar fact evidence?
[6] It is well established that this court owes deference to the determination of the trial judge, assuming he applied the proper legal principles. The trial judge gave careful reasons for his decision admitting the evidence of the sexual assault perpetrated by the appellant on the daughter of a previous girlfriend. Those reasons reveal no error in principle. Consequently, we defer to that decision. His decision to admit the evidence was reasonable in all of the circumstances.
IV
Conclusion
[7] The appeal is dismissed. The conviction on the sexual assault charge is confirmed. The other convictions are not in issue on the appeal, nor is the sentence.
“Doherty J.A.”
“E.E. Gillese J.A.”
“Robert P. Armstrong J.A.”