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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-06-14

Docket: C59590

Panel: Doherty, Lauwers and Brown JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

S.J. Appellant

Counsel

Diana M. Lumba and Marianne Salih, for the appellant

Lisa Joyal, for the respondent

Hearing

Heard and released orally: June 9, 2017

On appeal from the conviction entered on May 21, 2014 by Justice C. Herold of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

I. Did the trial judge err in dismissing the severance motion?

[1] The appellant was convicted of sexual assault-related charges involving his daughter and stepdaughter. He was acquitted on some of the charges involving his daughter. There are four grounds of appeal.

[2] The defence applied for severance at the outset of the case. The trial judge dismissed the motion primarily because he was satisfied, based on the transcripts of the evidence at the preliminary inquiry, that the Crown had a "viable" argument for admissibility of evidence of the two complainants as similar fact evidence. It was common ground that if the evidence was admissible as similar fact evidence, severance was not appropriate.

[3] At the end of the Crown's case, the trial judge largely dismissed the Crown's similar fact evidence motion, although he did allow the motion as it related to the "teaching" comment. The severance motion was not renewed.

[4] There is no error in the trial judge's severance ruling. He properly considered the potential admissibility of the similar fact evidence in deciding whether to sever the counts. The fact that the trial judge, after actually hearing all of the evidence and applying a very different standard of admissibility, determined that the similar fact evidence motion would be dismissed for the most part does not impact on the correctness of the severance ruling.

[5] The trial judge applied the correct test in considering the severance motion. He did not misapprehend any material evidence. We cannot interfere with his exercise of discretion.

II. Did the trial judge err in allowing the jury to consider the "teaching" comment made by the appellant to both complainants as similar fact evidence, while excluding the evidence of the acts giving rise to that comment as similar fact evidence?

[6] We see no error in the trial judge's ruling. The fact that both complainants testified that the appellant made the "teaching" comment, a remark which the jury could view as most unusual in the circumstances, was capable of supporting the credibility of the two complainants.

[7] The trial judge correctly and repeatedly distinguished between the permissible use of the evidence of the "teaching" comment and the impermissible use of the related acts involving the individual complainants. There was no objection to the charge. We see no reason to hold that the jury could not understand or apply the distinction made by the trial judge. We are satisfied that they could and did.

III. The alleged errors in the charge to the jury

[8] In his factum, the appellant raises three objections to the charge to the jury. In oral argument, counsel advanced one, although indicating that the appellant continued to rely on all three. We are satisfied that the trial judge did not make any reversible error in his charge. We will address only the argument on which counsel advanced oral submissions.

[9] The defence argues that the trial judge should have expressly cautioned the jury against the risk of propensity reasoning based on the jury's assessment of the appellant as a bad person. Propensity reasoning was certainly a risk in a case like this and the trial judge could have given the instruction now sought.

[10] The trial judge approached the issue somewhat differently. He repeatedly told the jury to consider the counts against each complainant separately and to not let any finding in respect of one complainant influence any finding in respect of the other. In our view, this instruction effectively cautioned against propensity reasoning. There was no objection to the charge. It is also telling that the jury acquitted the appellant on counts relating to two of the incidents involving his daughter. The different verdicts arrived at by the jury tell against any resort to propensity reasoning by the jury.

IV. The admissibility of the expert evidence tendered by the defence

[11] The defence wanted to tender a report prepared by a psychologist in child protection proceedings involving one of the complainants. We are satisfied that the trial judge properly excluded that evidence on the ground that it was irrelevant.

[12] There was no evidence put before the trial judge that the characteristics of the complainant identified by the clinical psychologist in a report prepared in a very different context and for a different purpose could possibly assist the jury in assessing the complainant's credibility as it concerned the evidence she gave at this trial. We cannot accept counsel's submission that trial counsel could simply "as a matter of common sense" explain to the jury how the characteristics identified by the expert could negatively impact on the complainant's credibility.

[13] As we agree with the trial judge that the proposed report was not relevant, and therefore inadmissible, we need not address the trial judge's alternative ground for excluding the report.

Disposition

[14] The appeal is dismissed.

"Doherty J.A."

"P. Lauwers J.A."

"D.M. Brown J.A."