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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-03-08

Docket: C59932

Panel: Cronk, Rouleau and Miller JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

Michael Kirlew

Appellant

Counsel

Mark Halfyard and Breana Vandebeek, for the appellant

Katherine Beaudoin, for the respondent

Hearing

Heard: February 24, 2017

On appeal from: the convictions entered on August 19, 2014 and the sentence imposed on February 6, 2015 by Justice Alexander Sosna of the Superior Court of Justice, sitting with a jury.

Decision

By the Court:

Introduction

[1] Following a trial by judge and jury, the appellant was convicted of the possession of child pornography (count one) and making child pornography available (count two). The conviction on the first count was stayed in accordance with R. v. Kienapple, [1975] 1 S.C.R. 729. The appellant was sentenced on the second count to 21 months in jail, plus three years' probation. Various ancillary orders were also imposed.

[2] The appellant appeals from his conviction on count two, making child pornography available. If his conviction appeal is successful, he seeks leave to make submissions on the appropriate sentence for his remaining conviction for possession of child pornography. The appellant does not otherwise seek to appeal against his sentence.

Conviction Appeal

[3] The appellant advances two grounds in support of his conviction appeal. First, he argues that the trial judge erred by failing to adequately rectify in his jury instructions the trial Crown's violation, in his closing address to the jury, of the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.).

[4] Specifically, the appellant says that the trial Crown violated the rule in Browne v. Dunn by suggesting to the jury, without the matter having first been raised in cross-examination, that the evidence of Adrian Walters, a computer technician who installed, updated and maintained file-sharing software on the appellant's home computer, was unreliable because Mr. Walters did not have notes of his dealings with the appellant over the years.

[5] Mr. Walters had testified that, based on his dealings with the appellant, he believed that the appellant had a limited understanding of computers. He described the appellant's knowledge of the use of computers as a "five out of 10", said that the appellant had problems opening his e-mail, and maintained that the appellant did not know how to transfer data from his inbox and create other folders on his computer.

[6] Mr. Walters' evidence was important to the defence because the jury was required to determine whether the appellant knew, or was wilfully blind to the fact, that he was making child pornography available to others through the file-sharing software on his home computer. The appellant testified at trial and claimed that he did not know that the pornography he admittedly downloaded on his computer was available for others to upload via the software on his computer.

[7] We do not accept the appellant's Browne v. Dunn complaint.

[8] The rule in Browne v. Dunn requires that, in the interests of fairness, where a party intends to challenge the credibility of a witness, the party must provide the witness with an opportunity to address the point upon which the witness' credibility is attacked.

[9] However, this is neither a fixed nor inflexible rule. As this court recently explained in R. v. Quansah, 2015 ONCA 237, 331 O.A.C. 304, at para. 80, the extent of the application of the rule "lies within the sound discretion of the trial judge and depends on the circumstances of each case" (citations omitted). Further, and importantly, compliance with the rule requires that "the cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness' credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness' story is not accepted" (emphasis in original, citations omitted).

[10] In this case, the trial Crown's cross-examination of Mr. Walters made clear that the reliability of the witness' memory and his professed recollections of his computer-related dealings with the appellant was directly in issue. The trial Crown put to Mr. Walters, and Mr. Walters agreed, that his memory was faded; that he had made no notes of the software version that he had downloaded on the appellant's computer; that he had no independent recollection of installing features of the file-sharing software on the appellant's computer; and that, in his testimony, he was "just going from memory".

[11] Against this backdrop, the trial Crown suggested to the jury in his closing address that Mr. Walters had a poor and non-specific recollection of what functions he performed on the appellant's computer, unassisted by any notes.

[12] In our view, it is far from clear that Browne v. Dunn was even implicated in this case. However, assuming that it was, we are satisfied, given the nature of the trial Crown's cross-examination, that this aspect of his closing argument did not offend the fairness considerations at which the rule in Browne v. Dunn is aimed. Based on the cross-examination, we agree with the Crown's submission on appeal that it would have been clear to all parties and the jury that the trial Crown was attacking the reliability of Mr. Walters' memory and recollections.

[13] The trial judge disagreed. Although the defence did not object to the trial Crown's closing address, the trial judge concluded that a correcting instruction to the jury was appropriate on the trial Crown's remarks concerning the reliability of Mr. Walters' testimony. In his instruction, the trial judge twice observed that Mr. Walters' memory had not been tested on cross-examination. With respect, as the appellant's counsel candidly acknowledges before this court, this observation was incorrect. That aside, the trial judge's correcting instruction clearly undercut the trial Crown's position that Mr. Walters' evidence was unreliable by informing the jury, in effect, that no proper foundation had been laid by the trial Crown upon which to advance that position. In this respect, the instruction clearly favoured the defence.

[14] In these circumstances, the appellant's Browne v. Dunn argument fails. As we have said, we are not persuaded that a violation of the rule in Browne v. Dunn requiring a correcting instruction occurred. However, even if it did, the trial judge's remedial instruction to the jury on the point adequately addressed any risk of prejudice to the defence.

[15] The appellant's second ground of appeal concerns the trial judge's charge on R. v. W.(D.), [1991] 1 S.C.R. 742. In his charge, the trial judge limited his W.(D.) instruction to the jury's consideration of the appellant's evidence. This instruction, the appellant says, runs afoul of R. v. B.D., 2011 ONCA 51, 273 O.A.C. 241 and gives rise to the risk that the jury in this case may not have properly considered the burden of proof.

[16] We reject this argument in the particular circumstances of this case.

[17] In R. v. B.D., at para. 114, this court held that the principles underlying W.(D.) are not confined to only those cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. Rather, "where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings."

[18] The purpose of a W.(D.) instruction is to bring home to the jury that, in the face of conflicting evidence, the paramount question for their determination is whether, on the whole of the evidence, the jury is left with a reasonable doubt about the accused's guilt: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6, citing R. v. Morin, [1988] 2 S.C.R. 345, at para. 361. For this reason, the analytical steps outlined in W.(D.) are intended to ensure that the jury remains focused on the principle of reasonable doubt: C.L.Y., at para. 6.

[19] The W.(D.) instruction in this case should not have been confined to only the appellant's testimony. By limiting his instruction in this respect, the trial judge erred. That said, we are satisfied that the jury charge, read as a whole, was nonetheless adequate to achieve the purpose of a proper W.(D.) instruction, described above.

[20] The issue in this case was the reliability of Mr. Walters' memory and recollections and whether his evidence and the other evidence at trial gave rise to a reasonable doubt. In his charge, the trial judge repeatedly told the jury that it was obliged to consider all the evidence before determining whether the appellant was guilty to the requisite criminal standard. He also provided the jury with an otherwise standard W.(D.) instruction and standard instructions on the presumption of innocence, the Crown's burden to prove its case beyond a reasonable doubt, and the standard of proof beyond a reasonable doubt.

[21] Further, in accordance with W.(D.), the trial judge instructed the jury that:

Even if [the appellant's] evidence does not leave you with a reasonable doubt about his guilt, or about an essential element of the [offence] charged, you may convict him only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt. [Emphasis added.]

[22] When the charge is read in its entirety, we are not persuaded that the impugned sentences in the trial judge's otherwise unobjectionable W.(D.) instruction tainted the whole of the charge. In our opinion, based on all the trial judge's instructions, this jury can have been under no misapprehension about its obligation to consider all the evidence in determining whether it raised a reasonable doubt about the appellant's guilt.

Disposition

[23] For these reasons, the conviction appeal is dismissed. We therefore do not reach the appellant's proposed appeal against sentence on his possession of child pornography conviction.

Released: March 8, 2017

"EAC" "E.A. Cronk J.A."

"MAR -8 2017" "Paul Rouleau J.A."

"B.W. Miller J.A."