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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. A.B., 2016 ONCA 830

DATE: 20161104

DOCKET: C55111

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.B.

Appellant

Timothy E. Breen, for the appellant

Peter Scrutton, for the respondent

Heard and released orally: November 1, 2016

On appeal from the conviction entered on December 22, 2011 by Justice Guy P. Di Tomaso of the Superior Court of Justice sitting, with a jury.

ENDORSEMENT

[1] The appellant was tried by a jury on an indictment that contained three counts of sexual assault and a single count of uttering death threats. The counts of sexual assault were alleged to have occurred on various dates or during defined time periods over about 26 months. The complainant on each count was the appellant’s former spouse.

[2] The allegations related to conduct said to have occurred after the appellant and his former spouse had separated. The appellant was then living with his new partner, now wife. The complainant described three discrete instances on which she had unwillingly had sex with the appellant. The complainant said that on each occasion the sexual incident occurred without her consent. The appellant testified at trial. He admitted to having had sex with the complainant, but said that, on each occasion, the conduct was consensual and mutually agreeable.

The Trial Proceedings

[3] Prior to trial, the appellant was represented by counsel who indicated her intention to cross-examine the complainant on a Facebook message the complainant allegedly sent to the appellant’s now wife. The message was allegedly sent about midpoint in the timeframe of the sexual assault allegations contained in the indictment. It would not be unfair to say that the message recounted several incidents of sexual activity between the appellant and complainant and made it clear that the sexual activity was consensual on the complainant’s part.

[4] At trial, the appellant was self-represented. The trial judge appointed counsel to cross-examine the complainant under the auspices of s. 486.3 of the Criminal Code. Counsel sought to question the complainant about the Facebook message. The complainant asserted no recollection of having sent the message and expressed the disbelief that she had done so.

[5] Appointed counsel sought to proceed further to cross-examine the complainant on the contents of the message. The trial Crown objected on the basis that no s. 276 application had been made. The trial judge agreed, ruled that no further cross-examination could take place and directed the jury to disregard all the evidence about the message.

The Appellate Proceedings

[6] The appellant appealed his conviction. Appellate counsel invited forensic analysis of the appellant’s wife’s computer in order to determine the authenticity of the source of the message. With the assistance of counsel for the respondent, an expert located the message on the wife’s Facebook account and determined that neither the date nor the content of the message had been manipulated.

[7] A further investigation determined that the message had been sent from an IP address associated with the complainant’s brother. When interviewed about the results of the investigation, the complainant acknowledged having sent the message.

The Fresh Evidence

[8] The appellant seeks leave to introduce as fresh evidence on his appeal from conviction:

i. a copy of the Facebook message sent to the appellant’s wife on February 23, 2009;

ii. the results of a forensic analysis of the computer and Facebook account of the appellant’s wife who received the message;

iii. the results of a search to determine to whom the Facebook account from which the message originated was associated; and

iv. the complainant’s acknowledgment of having sent the message.

[9] For the Crown, Mr. Scrutton concedes that the appellant has established the prerequisites to admissibility for the proposed fresh evidence. We agree.

[10] In our view, the proposed fresh evidence is relevant to a potentially decisive issue – the complainant’s credibility on the issue of consent – which was, after all, the only controverted element of the offence at trial. The message had impeachment value as a statement inconsistent with the complainant’s claim of non-consent asserted at trial.

[11] Second, as the parties agree, the proposed evidence is reasonably capable of belief.

[12] Third, as Mr. Scrutton for the Crown acknowledges, the proposed fresh evidence could have reasonably affected the verdict of the jury had it been elicited at trial. Indeed, prior to trial, then counsel for the Crown had conceded that authentication of the message warranted termination of the proceedings in their entirety.

Conclusion

[13] In the result, we would admit the fresh evidence, set aside the conviction and order a new trial. In accordance with the joint request of counsel in this court, we direct that the order for a new trial be stayed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“David Watt J.A.”