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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Mayers, 2014 ONCA 474

DATE: 20140617

DOCKET: C53248 & C50046

Doherty, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ron Junior Mayers

Appellant

Daniel Santoro and Joshua Tong, for the appellant

Karen Papadopoulos, for the respondent

Heard and released orally: June 5, 2014

On appeal from the conviction entered on May 3, 2006 by Justice Molloy of the Superior Court of Justice and the sentence imposed on July 16, 2008.

ENDORSEMENT

[1] The appellant appeals his convictions and also appeals the indeterminate sentence imposed upon the finding that the appellant was a dangerous offender. There are two grounds of appeal on the conviction appeal.

The Corbett Ruling

[2] The appellant has an extensive criminal record. At trial, he sought to have most of that record redacted for the purpose of cross-examination. On appeal, counsel focuses on two convictions for sexual assault that were entered about three or four years before the appellant's trial.

[3] The trial judge has a recognized discretion to edit an accused's criminal record for the purpose of cross-examination. This court must defer to a trial judge's decision in this regard absent error in principle, a misapprehension of material facts, or an exercise of the discretion which, in the totality of the circumstances, must be regarded as unreasonable.

[4] In this case, the trial judge, motivated primarily by the forceful attack on the complainant's credibility and character, concluded that the convictions for sexual assault should not be edited, but should instead by the subject of a strong limiting instruction.

[5] R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, the guiding authority, instructs, at paras. 35 and 50, that trial judges should begin from the premise that juries should receive all relevant information accompanied, where necessary, by a proper and clear limiting instructions. Corbett further instructs that the discretion to keep information about an accused's criminal record from the jury should not be exercised absent clear grounds in policy or law for doing so.

[6] Bearing in mind the approach dictated by Corbett and giving the trial judge's ruling the appropriate deference, we cannot say that she erred in exercising her discretion against editing the appellant's criminal record by removing the convictions for sexual assault. This ground of appeal cannot succeed.

The Ruling on the Collateral Fact Issue

[7] Assuming without deciding that the proposed evidence of the by-law enforcement officer was, contrary to the trial judge's ruling, admissible for the defence, we are satisfied that the exclusion of that evidence caused no substantial wrong or miscarriage of justice. The evidence was offered to show that the complainant was operating a massage parlour in which she also engaged in sexual activity for money. The complainant had denied that she did so. Arguably, a finding that she engaged in such conduct would offer some support for the appellant's story.

[8] There was other evidence before the jury that both clearly established that the complainant was operating a massage parlour and supported the inference that sexual activity may well have been an "extra" offered for additional payment. The evidence which the trial judge excluded was evidence of a single event five months earlier involving a very different kind of sexual activity than the appellant testified he anticipated. Any potential probative value that evidence had for the appellant paled beside the evidence that was already before the jury.

[9] Furthermore, we regard this as an overwhelming case for the Crown. The forensic evidence, particularly the evidence of the discovery of the knife and the Kleenex with the appellant's DNA in a field outside of the complainant's business premise, provided powerful evidence supporting the Crown's case. It also rendered the explanation offered by the appellant entirely incredible. In our view, had the evidence tendered by the defence been admitted, there was no reasonable possibility given the other evidence in this case that the verdict could have been any different.

[10] The conviction appeal is dismissed.

The Sentence Appeal

[11] The trial judge found that the appellant met the criteria for a dangerous offender. No one takes issue with that finding. She went on to conclude that an indeterminate sentence was the appropriate sentence in all of the circumstances. Counsel for the appellant does not take issue with her reasons in that regard, but argues that the proceeding was inherently unfair because the trial judge did not take into account the appellant's alleged disability which, according to the submissions we heard, rendered it very difficult for the appellant to verbalize his feelings and intentions. As we understand it, counsel for the appellant argues that the trial judge could not get a full and accurate picture of the appellant's potential for treatment absent some alternative approach to the appellant's assessment which would counter his inability to verbally express himself. Counsel submits that the appellant demonstrated an ability to set out his state of mind and his intentions with respect to future treatment in writing and that the trial judge should have explored this mode of communication more fully.

[12] In our view, the trial judge was careful to afford the appellant every opportunity to put his position forward. There is nothing more that the trial judge could have done that would have offered any further insight into the appellant's condition and, particularly, the ongoing risk that he posed to the public. We cannot agree that there was any unfairness in the manner in which the dangerous offender proceeding was conducted. To the contrary, we think the trial judge was very alive to the need to treat the appellant fairly and to explore all avenues before imposing an indeterminate sentence.

[13] The sentence appeal is dismissed.

"Doherty J.A."

"M. Tulloch J.A."

"M.L. Benotto J.A."