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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. J.H., 2013 ONCA 693

DATE: 20131114

DOCKET: C55045

Weiler, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.H.

Appellant

Mark Halfyard, for the appellant

Grace Choi, for the respondent

Heard and released orally: November 5, 2013

On appeal from the conviction entered on June 28, 2011 and the sentence imposed on December 19, 2011 by Justice Robert W. Beninger of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

NATURE OF THE APPEAL

[1] The appellant was charged with a number of offences against his ex-spouse. He was convicted of one count of sexual assault, two counts of assault and one count of voyeurism, and acquitted of the remaining charges. He appeals only against his conviction for sexual assault. Although the appellant also originally sought leave to appeal his sentence, the appeal from sentence was not pursued and is dismissed as abandoned.

[2] The appellant raises two grounds of appeal. They are: 1) whether the trial judge inappropriately considered certain evidence as similar fact evidence; and 2) whether the trial judge inappropriately curtailed the testimony of the appellant on the basis of the collateral facts rule.

[3] We did not call on the Crown to respond to this second ground of appeal as we are all of the opinion that the evidence the defence wished to lead from the appellant was sought to be adduced for the sole purpose of impeaching the complainant’s credibility. Evidence of whether the complainant had ever made or encouraged a false motor vehicle accident report on some other occasion was relevant only to her credibility as a witness at trial. This evidence falls within the collateral facts rule and does not fall within any exception to it. Just because the appellant had properly admissible evidence to give does not mean he is permitted to give evidence that is inadmissible due to a contravention of the collateral facts rule.

[4] In relation to the first ground of appeal, the appellant argues that the trial judge inappropriately considered similar fact evidence from other counts on the multi-count indictment on the sexual assault charge. Specifically, the appellant says that, without conducting a proper admissibility analysis, the trial judge considered the bathroom video that founded the voyeurism conviction as evidence of similar acts on the count that charged sexual assault that also involved a video.

[5] The sexual assault charge arose from a set of short video clips found on the appellant’s cell phone. The videos were taken on different dates between March and September 2008. The video clips showed close-up images of a woman’s vaginal and anal area. In some clips, these areas were manipulated or digitally penetrated by a hand. Some of the videos show the complainant’s face and she is clearly asleep. The bathroom video was on the same cell phone and media card and taken during the same time period.

[6] In our opinion, the evidence was part of the circumstantial evidence available for consideration on the issue of the identity of the person who committed the sexual assault. General bad character evidence is prohibited in law. The bathroom video is not, however, that type of evidence. It is tied in with the appellant’s cell phone, his media card, other family pictures, and the still pictures of the complainant’s nudity which she erased. Moreover, the appellant admitted to being the only male in the house when the complainant was sleeping at night during relevant times.

[7] The trial judge did not err in his treatment of the evidence. Accordingly, the appeal as to conviction is dismissed.

“K.M. Weiler J.A.”

“David Watt J.A.”

“S.E. Pepall J.A.”