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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-09-21

Docket: C59121

Panel: Laskin, Pepall and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Jomo Kenyatta Hamilton Appellant

Counsel:

• Carol Cahill, for the appellant
• Rochelle Direnfeld, for the respondent

Heard and released orally: September 15, 2017

On appeal from: the conviction entered on June 26, 2013, and the sentence imposed on September 6, 2013, by Justice Gisele M. Miller of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Jomo Hamilton was convicted of sexual assault and sexual interference. The victim was the 13 year old daughter of Mr. Hamilton's friend. Over the course of a number of months, Mr. Hamilton engaged in multiple acts of anal intercourse with the victim, as well as one act of vaginal intercourse. The appellant appeals against conviction and sentence.

[2] The main ground of appeal is that the trial judge erred in admitting into evidence a partial recording of a telephone call between the appellant and the victim's mother. The appellant apologizes in the recorded part of the statement. He appears to be crying.

[3] The appellant argues that there was insufficient context that would permit the jury to understand the meaning of the appellant's words. Here, the trial judge was satisfied that the evidence of the victim's mother could provide the requisite context to render the statement admissible. This was a finding that was available to the trial judge on the record. It was then for the jury to consider the mother's evidence in its entirety, and determine whether, if believed, it provided sufficient context to allow the partial recording to have any value.

[4] We are not persuaded that the statement contained improper demeanour evidence. This was not a situation in which the mother gave her impressions of the appellant's attitude, emotions or state of mind. Here, the mother described what she heard. Moreover, the appellant can be heard crying in the recording.

[5] On appeal, Ms. Cahill argues that the trial judge should have instructed the jury to approach this evidence with caution. However, counsel at trial (not Ms. Cahill) did not request such a warning, and there was no subsequent objection. We can see no error in the trial judge's charge.

[6] Ms. Cahill makes similar submissions about the set of text messages that were entered into evidence. The argument is that the text messages were incomplete. It is argued that the trial judge ought to have told the jury to exercise caution because of the lack of context. Defence counsel made this argument before the jury, and this was repeated in the trial judge's charge. We can find no error in the trial judge's ruling to admit this evidence, nor any inadequacy in her instructions.

[7] The appeal against conviction is dismissed. The appeal against sentence is dismissed as abandoned.

"John Laskin J.A."

"S.E. Pepall J.A."

"G.T. Trotter J.A."