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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29.

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. R. M., 2015 ONCA 9 Date: 2015-01-12 Docket: C55884

Before: Doherty, Rouleau and Watt JJ.A.

Between:

Her Majesty the Queen Respondent

and

R. M. Appellant

Counsel: Tim Breen, for the appellant Holly Loubert, for the respondent

Heard and released orally: January 7, 2015

On appeal from the conviction entered on June 6, 2012 and the sentence imposed on August 17, 2012 by Justice Jennifer A. Blishen of the Superior Court of Justice, sitting with a jury.

Endorsement

[1] The appellant appeals his convictions of sexual assault, invitation to sexual touching and sexual exploitation in respect to each of the two complainants who were foster children in the appellant’s home. He also seeks leave to appeal the sentence of nine years imposed by the trial judge.

[2] The appellant advances four grounds of appeal against conviction. He submits that the trial judge erred in law:

i. in admitting as evidence of similar acts the testimony of each complainant on the counts relating to the other complainants;

ii. in failing to adequately caution the jury about the significance of one complainant’s knowledge of the prior complaints and investigation in relation to the other complainants as a factor the jury should consider in assessing the reliability of that complainant’s evidence; and

iii. in failing to adequately respond to a jury question that revealed an evidentiary misstatement in the trial judge’s charge to the jury.

The fourth ground, added in oral argument is that the trial judge erred in failing to enter Kienapple stays on two of three counts in relation to each complainant.

[3] We would not give effect to any ground of appeal, save and except for that relating to the rule against multiple convictions.

[4] In her ruling on the cross-counts admissibility of the evidence of each complainant, the trial judge revealed her appreciation of the improbability of coincidence as the core of the probative value of evidence of similar acts. The trial judge carefully assessed the probative value and the prejudicial effect of the evidence and concluded that the former predominated over the latter.

[5] As trial counsel acknowledged, there was no evidence of actual collusion. The trial judge grounded her admissibility ruling on the similarities in specific, almost unique, details among the complainants’ accounts. Knowledge of the fact of prior allegations by one complainant did not include disclosure of these specifics. In these circumstances, we are satisfied that the trial judge’s admissibility ruling does not reflect error.

[6] The trial judge recognized the need to caution the jury on the effect of tainting on their assessment of and reliance upon the evidence of one of the complainants. While her instructions to the jury on this issue could have been more extensive, we are satisfied that they were adequate in the circumstances of this case to bring home to the jury that they had to consider that complainant’s knowledge of the prior abuse complaints in assessing the value of her evidence. Given that the evidence went no further than that one complainant knew that other complainants had made complaints, there was little more that could have been said that would have assisted the appellant. In this respect we note, as well, that trial counsel did not object to this instruction.

[7] In connection with the trial judge’s response to the jury’s question, we are satisfied that the response was correct, albeit less direct than it might have been. No objection was taken by trial counsel for the appellant to the judge’s response to this question.

[8] On sentence, we are satisfied that, when imposed, the sentence reflected no error in principle. The trial judge was aware of health concerns with respect to the appellant. The fresh evidence reveals that the appellant’s condition has unfortunately deteriorated significantly since sentence was passed. As sympathetic as we are to his deteriorating condition, we are not persuaded that this provides a stand-alone basis on which to interfere with what we regard as an otherwise fit sentence.

[9] In the result, the appeal from the convictions entered at trial are dismissed except to the extent that stays are entered on the counts charging sexual assault in relation to each complainant.

[10] Leave to appeal sentence is granted, but the appeal from sentence is also dismissed.

“Doherty J.A.” “Paul Rouleau J.A.” “David Watt J.A.”