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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 2017-03-29

Docket: C61212

Panel: Doherty, Huscroft and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

D.H. Appellant

Counsel:

• Najma Jamaldin, for the appellant
• Philippe Cowle, for the respondent

Heard: March 21, 2017

On appeal from: the conviction entered on April 14, 2015 and the sentence imposed on July 9, 2015 by Justice Edward M. Morgan of the Superior Court of Justice.

Endorsement

[1] The appellant was convicted of multiple sexual offences against his son, who was six years old at the time of the offences. The appellant was sentenced to five years imprisonment with ancillary prohibition orders. He appeals against conviction and seeks an extension of time to apply for leave to appeal aspects of the sentence.

[2] For the reasons set out below, the appeal against conviction is dismissed. With respect to the sentence appeal, the extension of time, the leave to appeal sentence, and the appeal of sentence are granted, but limited to the extent of the Crown's concession, as explained below.

A. Conviction Appeal

Collusion

[3] Although the appellant raised several issues on appeal, only two alleged errors were strenuously pursued in oral argument: (1) the trial judge's failure to find that the complainant's evidence was tainted by collusion; and (2) the trial judge's admission, as similar fact evidence, of the appellant's criminal record for the sexual assault of an 8 year old girl.

[4] The argument from collusion was characterized by counsel for the appellant as the heart of the appeal. The factual background is this: the appellant had an unstable relationship with the complainant's mother for the first three years of the complainant's life. The appellant and the complainant's mother had an acrimonious separation, and the complainant visited his father every second weekend.

[5] The appellant argues, effectively, that the complainant's mother influenced the complainant's evidence by speaking negatively about him and, specifically, by continually questioning the complainant, and having public authorities question the complainant, about whether the appellant had ever sexually abused him. The backstory to this questioning is that when the complainant was 11 years old, the appellant pleaded guilty to the sexual assault of an eight-year-old girl, K.I., the daughter of the appellant's girlfriend at the time.

[6] Later, when the complainant was 15 years old and the appellant had been out of his life and his mother's life for several years, he spontaneously disclosed the sexual abuse in notes and drawings that he gave to his foster father. In those writings he also mentioned the appellant's abuse of K.I.

[7] The appellant argues that the complainant's description of events was influenced by his mother in several different ways: First, through exposure to his mother's ill-will towards the appellant fueled by years of acrimonious family litigation; second, through repeated questioning of the complainant; third, by his mother informing him about the appellant's abuse of K.I. Additionally, the appellant argues that the complainant may have had opportunity to speak with K.I. directly, and may have colluded with her.

[8] The trial judge found, however, that mere opportunity is insufficient and that there was no evidence that the complainant spoke with K.I. about the incidents involving her. The trial judge further found that the other instances of possible collusion raised by the appellant were in the realm of conjecture.

[9] We agree.

[10] The appellant further argues, however, that the absence of evidence of collusion is the fault of the Crown in not calling the complainant's mother as a witness at the voir dire. The appellant argues that the evidence at the voir dire met the necessary evidential threshold requiring the Crown to call the mother to give evidence. The Crown did not do so, with the result, the appellant argues, that the defence was deprived of her evidence, particularly of what she told the complainant about the incidents involving K.I.

[11] We do not agree that the trial judge made any error in finding that there was no evidence of collusion between the complainant and his mother that would satisfy the threshold requirement. The mere fact of questioning of the complainant was not sufficient, and there was no evidence that anyone discussed the details of the offences against K.I. with the complainant. Significantly, the complainant's evidence about what he witnessed of the appellant and K.I., in fact, was different than what the complainant would have known if he had relied on accounts of the appellant's prior conviction. This ground of appeal fails.

Similar Fact Evidence

[12] As to the second ground of appeal, the trial judge made no error in admitting the similar fact evidence. He adverted to the correct legal principles and found relevant similarities between the prior offences (to which the appellant had plead guilty) and the offences against the complainant. Both sets of offences were characterized as opportunistic, secretive encounters. In both cases, the appellant exploited the vulnerability of pre-pubescent children under his care. The children were similar in age and in both cases there was a similar pattern of escalation. In both cases, the exploitation occurred suddenly, without grooming, recurred over a few weeks, and then suddenly stopped.

B. Sentence Appeal

[13] The appellant seeks an extension of time to apply for leave to appeal various provisions of an ancillary prohibition order. The Crown concedes that one part of the prohibition order – the prohibition on communicating with persons under the age of 16 (paragraph (d) of the prohibition order) – is unconstitutional for retroactive application, following the recent decision of the Supreme Court in R. v. K.R.J., 2016 SCC 31. The Crown also concedes that the lifetime prohibition on being within 2 km of the complainant (paragraph (b) of the prohibition order) should be varied to a 15 year ban. To the extent of these two concessions, we grant the extension to appeal sentence, grant leave to appeal, and order the sentence be varied by deleting paragraph (d) of the prohibition order, and replacing the lifetime prohibition in paragraph (b) with a 15 year prohibition. We cannot address the remainder of the prohibition order in the absence of a constitutional challenge, and make no comment on its constitutionality. We do not grant the extension of time to apply for leave to appeal those aspects of the sentence.

Disposition

[14] The appeal against conviction is dismissed. We grant an extension of time to appeal sentence as set out above, grant leave to appeal, and order the sentence varied by deleting paragraph (d) of the prohibition order, and by replacing the lifetime prohibition in paragraph (b) with a 15 year prohibition.

"Doherty J.A."

"Grant Huscroft J.A."

"B.W. Miller J.A."