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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5

(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society's interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

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.

(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: 2018-04-12

Docket: C61558

Panel: Feldman and Benotto JJ.A. and Sachs J. (ad hoc)

Between

Her Majesty the Queen Respondent

and

J.M. Appellant

Counsel:

• Philip Campbell, for the appellant
• Christine Tier, for the respondent

Heard and released orally: March 28, 2018

On appeal from: The conviction entered on February 20, 2015 and the sentence imposed on July 2, 2015 by Justice E.A. Quinlan of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was tried before a judge and jury on three counts arising from an altercation between himself and his wife, C.F. The charges were aggravated assault, choking to overcome resistance and threatening death. He was convicted of aggravated assault and, on the charge of choking, of the included offence of assault. He was acquitted of the charge of threatening death. This is an appeal from the two convictions.

[2] The appellant alleges that the trial judge made two legal errors that led to an unfair trial. Specifically, he submits that:

(i) the trial judge erred in instructing the jury that there was no evidence that the pot of spaghetti sauce responsible for C.F.'s burning and scarring fell from the stove top rather than being poured over her by the appellant;

(ii) the trial judge erred in allowing Officer Henderson to testify in detail about the fact that the marks that he observed on C.F.'s neck appeared to him to be fingerprints.

Ground One: Error Respecting the Falling Pot

[3] One of the incidents that formed the basis for the charge of aggravated assault was based on C.F.'s testimony that the appellant poured a pot of hot spaghetti sauce over her, causing her to suffer several burns. During the course of C.F.'s testimony, the defence put several alternate scenarios to her, including that the pot of spaghetti sauce fell off the stove. C.F. unequivocally denied those suggestions. The appellant did not testify.

[4] In her charge to the jury, the trial judge stated "Ladies and Gentlemen, there is no evidence that the pot fell on [C.F.] and you must not speculate on this".

[5] After several discussions between counsel as to how far defence counsel could go in terms of suggesting alternate scenarios to the jury, the trial judge was clear that the appellant was entitled to attack C.F.'s credibility, including her credibility about how the spaghetti sauce ended up all over her. According to the appellant, central to the appellant's attack on C.F.'s credibility was the ability to suggest to the jury that the photographic evidence of the spaghetti sauce splatter on the floor was circumstantial evidence from which they could draw the inference that the pot of spaghetti sauce fell on C.F., as opposed to being poured over her by the appellant.

[6] While this was the position that the appellant took on the appeal before us, this was not the position that defence counsel took before the trial judge. Significantly, when the Crown objected to the portion of defence counsel's closing where she posed the question "did the pot fall on her?", defence counsel said that she only meant to convey that the jury could reject C.F.'s evidence. Counsel apologized and agreed that there was no evidence of the pot falling. She also agreed that a corrective instruction about speculation would be appropriate and advocated for a similar corrective instruction to address an area of the evidence where the Crown invited the jury to speculate.

[7] We do not accept the suggestion that, in spite of trial counsel's position, the trial judge's charge on this point nevertheless undermined the fairness of the trial, given what the photographic evidence that was before the jury actually depicts. On the defence theory, if the pot fell off the stove, this would have resulted in limited spaghetti sauce splatter close to the ground. However, the photographs do not show only limited splatter close to the ground. They also show splatter half way up the refrigerator door.

[8] Therefore, we see no merit to this ground of appeal.

Ground Two: Officer Henderson's Evidence on Neck Injuries

[9] The appellant submits that Officer Henderson's evidence regarding the appearance of C.F.'s neck injuries was inadmissible expert opinion evidence. At the beginning of Officer Henderson's testimony, the Crown did try to elicit an opinion from him as to the cause of C.F.'s neck injuries. The defence objected and the trial judge agreed with defence counsel that such evidence was not admissible. The trial judge then ruled that they would proceed "question by question as to whether or not you're going too far", thus making it clear that she would entertain further objections on this point if the evidence strayed from proper bounds. No further objection was taken to the evidence that the appellant now seeks to impugn.

[10] The line between properly admissible descriptive evidence and inadmissible expert opinion evidence can sometimes be a difficult line to draw. In this case, however, it is clear that in the view of the parties who were at the trial, the line was not crossed. In R. v. J.A., 2011 SCC 17, the Supreme Court considered a case where it was submitted that an officer's evidence concerning the appearance of an injury "arguably exceeded the proper boundaries of lay opinion evidence" and agreed that if the "opinion stood unchallenged the error may have been of little consequence". (paragraph 11)

[11] In assessing the consequence of any error in this case, if there was one, it is important to note that the evidence was not treated as opinion evidence in the judge's charge and that the evidence did not inflame the jury as they did not convict the appellant of choking, but just of simple assault.

[12] For these reasons, the conviction appeal is dismissed. The sentence appeal is dismissed as abandoned.

K. Feldman J.A.

M.L. Benotto J.A.

Sachs J. (ad hoc)