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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-08-18

Docket: C57819

Panel: Doherty, LaForme and Rouleau JJ.A.

Between

Her Majesty the Queen Respondent

and

Joseph Joseph Appellant

Counsel

Matthew R. Gourlay, for the appellant

Rachel Young, for the respondent

Heard

August 17, 2017

Appeal

On appeal from the conviction entered by Justice Seppi of the Superior Court of Justice, sitting with a jury, dated February 20, 2013 and, if leave is granted, from the sentence imposed on May 16, 2013.

Appeal Book Endorsement

[1] We disagree with the submission that the evidence of the prior conviction for sexual assault should have been excluded. In our view, it was properly considered as part of the "package" of similar fact evidence that included the three incidents in 2011. Viewed in that context, the evidence had significant potential probative value. It is true that there was a prejudicial potential from the evidence (as there almost always is), however, the trial judge took steps to minimize the prejudice and repeatedly instructed the jury against the improper use of the evidence.

[2] We also do not accept the submission that none of the similar fact evidence was admissible on the issue of "consent" and that the trial judge erred in instructing the jury that the evidence was admissible on consent.

[3] The similar fact evidence offered support for the complainant's version of how it was that she ended up in the hotel room with the appellant. The potential probative value of the similar fact evidence lay in its ability to help the jury consider the competing versions of the relevant events. The appellant said he was in the hotel room at the complainant's invitation to have sex. The complainant said she was there to pursue the job offer proffered by the appellant.

[4] Because the similar fact evidence potentially supported the complainant's version of how it was she went to the hotel room, it inevitably, in the circumstances of this case, rendered her evidence that the sexual activity in the hotel room was not consensual, more credible.

[5] Counsel also takes exception to the adequacy of the charge. In our view, the instruction was adequate. The trial judge told the jury how it could use the evidence as it related to consent [paras. 77-79 of the charge]. She also identified the improper uses of the evidence.

[6] The trial judge could have been more explicit about how the evidence related to consent. She was not asked to do so by either counsel. We cannot say she erred in not giving a more detailed instruction.

[7] We see no basis upon which to interfere with the conviction on forcible confinement. No objection was taken to the charge at trial. In any event, the conviction had no impact on the sentence.

[8] The appeal is dismissed.