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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.L., 2012 ONCA 752

DATE: 20121107

DOCKET: C54508

O’Connor A.C.J.O., Weiler and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.L.

Appellant

M. Dineen, for the appellant

K. Crosbie, for the respondent

Heard: September 11, 2012

On appeal from the conviction entered by Justice M. Code of the Superior Court of Justice dated May 18, 2010.

O’Connor A.C.J.O.:

[1] The appellant was convicted by Justice Michael Code of sexual assault and incest. The convictions arose out of the same incident. He was sentenced to three and one-half years imprisonment with credit for pre-trial custody. He appeals his conviction.

[2] The appellant raised one ground of appeal. He argues that the trial judge erred in permitting the Crown to call reply evidence with respect to the timing of a pizza order placed by the appellant. The appellant submits that the evidence relating to the pizza order – an order receipt – relates to a collateral issue and as such was not admissible by way of reply.

[3] Despite Mr. Dineen’s very able argument, I see no error and would dismiss the appeal.

[4] I need set out only a brief summary of the facts. The complainant, M.M., is the appellant’s half-sister. The appellant was 23 years of age at the time of the incident and M.M. was 16. On August 17, 2010, M.M. arrived in Toronto from New York to visit the appellant. He picked her up at the airport and took her to the house which he shared with his mother, wife and child.

[5] M.M. testified that at some point during the evening, the appellant ordered pizza. When the pizza arrived, the appellant paid the driver and left the house for a period of time. The appellant’s mother, who had been out, returned to the house around 11:00 p.m. The mother and M.M. had a visit. The appellant returned home sometime after midnight. The three of them talked in the kitchen until around 1:00 a.m. The appellant’s mother went upstairs to bed and M.M. and the appellant went downstairs to the appellant’s bedroom to continue their visit. They played on his laptop, talked and watched television. Eventually, M.M. fell asleep. She woke at around 3:00 a.m. The appellant was sexually assaulting her and had vaginal intercourse with her. She did not consent.

[6] The appellant and his mother described the events of August 17 very differently. He said he placed the order for pizza at around 4:00 p.m. and that after it arrived he went out. The appellant’s mother testified that she arrived at the house at around 6:00 p.m. The appellant and his mother testified that the appellant returned home at about 9:00 p.m. and around 9:50 p.m. the appellant went downstairs to his bedroom alone. The appellant testified that the complainant never came downstairs and that he did not sexually assault her.

[7] The appellant’s mother said that after the appellant went to bed at about 9:50 p.m., she stayed up with the complainant until about midnight and then she, the mother, went upstairs to bed. She told the complainant that she could sleep upstairs.

[8] After the defence evidence was completed at trial, the Crown sought to introduce an order receipt from Pizza Pizza showing that the appellant had ordered pizza at 10:04 p.m. on August 17, 2010. The receipt tended to support the complainant’s evidence about the timing of events that occurred on August 17. They occurred many hours later than the appellant and his mother had indicated.

[9] The defence objected to the introduction of the order receipt arguing that the evidence about the time that the appellant ordered the pizza related to a collateral fact and as such it was not open to the Crown to rebut the appellant’s evidence on this issue.

[10] The trial judge admitted the order receipt. He gave short oral reasons during the trial and expanded on those in his reasons for judgment. The trial judge concluded that there was no concern that the Crown was splitting its case. The Crown did not have possession of the receipt during its case-in-chief, nor was the issue of the timing of the pizza order raised by either party during the Crown’s case. The timing only became an issue when the appellant testified. The Crown could not have reasonably foreseen the issue.

[11] The trial judge also concluded that the evidence did not relate to a collateral issue. He pointed to the differences in the evidence between the complainant on the one hand and the appellant and his mother on the other. The trial judge said:

Both sides agree that the pizza was ordered and that it arrived before [the appellant’s mother] came home and that [the appellant] went out after the pizza had arrived and then returned home sometime later. The order form is helpful evidence in resolving this conflict in the two chronologies. In essence, the order form has the effect, if accepted, of placing the appellant up and about and in M.M.’s presence long after he and [the appellant’s mother] say that he went to bed alone. As such, the time of delivery is not a mere collateral fact but relates to a substantive issue, namely, the accused’s whereabouts immediately before the alleged sexual assault [case cites omitted].

[12] I agree with the trial judge. In R. v. Aalders, 1993 CanLII 99 (SCC), [1993] 2 S.C.R. 482, 103 D.L.R. (4th) 700, Cory J., for the majority, described evidence that does not offend the collateral fact rule to include evidence that may be helpful in resolving an essential issue in the case. At p. 498, he said:

It is true that the Crown cannot split its case to obtain an unfair advantage. Nor should the Crown be able to put in evidence in reply on a purely collateral issue. However, it is fit and proper that reply evidence be called which relates to an integral and essential issue of the case. In such circumstances, it would be wrong to deprive the trier of fact of important evidence relating to an essential element of the case. The course of a trial, particularly a criminal trial, must be based upon rules of fairness so as to ensure the protection of the individual accused. However, the rules should not go so far as to deprive the trier of fact of important evidence, that can be helpful in resolving an essential element of the case.

[13] In this case the trial judge recognized that the pizza receipt should not be admitted solely to undermine the credibility of the appellant. While its admission did have that result, the evidence also was helpful in resolving an essential issue in the case. It tended to support the complainant’s version of events that the pizza was ordered later at night and that after the appellant left and returned home, he and the complainant were together and then went to his bedroom in the basement where she says the assault occurred. The order receipt also tended to undermine the evidence of the appellant and his mother that the pizza was ordered six hours before the time on the receipt and that the appellant had gone downstairs to bed alone before the time on the order receipt. The receipt put the appellant and the complainant together at a time much closer to the alleged offence and after the appellant said he had gone to bed alone.

[14] I recognize that the order receipt is not determinative of an issue in the case. Indeed, at the trial, the appellant conceded that on either view of the evening’s events, he had the opportunity to commit the offence. That said, the order receipt was useful because it increased the plausibility of the complainant’s evidence about how the assault occurred.

[15] I also note that the admission of the receipt did not cause the appellant any trial unfairness. Had the Crown known of the issue relating to the timing of ordering the pizza before the trial, it could have obtained and introduced the receipt as part of its case. As it turned out, the appellant raised the issue for the first time during his examination-in-chief when he testified that the pizza had been ordered at 4:00 p.m. and that he had gone downstairs to bed alone before 10:00 p.m. That evidence was sufficiently connected to his testimony that the complainant never went to the basement and his denial of a sexual assault to open the door to rebuttal by the Crown. Finally, I note that the introduction of the order receipt in reply was done very simply and did not distract from other relevant issues in the case.

[16] In the result, I would dismiss the appeal.

RELEASED: “NOV 07 2012” “DOC”

“Dennis O’Connor A.C.J.O.”

“I agree K.M. Weiler J.A.”

“I agree Alexandra Hoy J.A.”