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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-07-18

Docket: C59219

Panel: Benotto, Trotter and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

R.J. Appellant

Counsel:

• R.J., self-represented
• Lindsay Trevelyon, duty counsel
• Deborah Calderwood, for the respondent

Heard & Released Orally: July 11, 2018

On Appeal From: The conviction entered on April 12, 2011 and the sentence imposed on August 6, 2014 by Justice Cary Boswell of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was convicted of sexual assault of his then 17 years old niece. He appeals his conviction on the basis that the trial judge erred by not providing a proper curative instruction to the jury in response to Crown counsel's closing.

[2] During her closing submissions, Crown counsel told the jury that the complainant was not asked how it was that her genitals had abrasions or how male DNA was on her body. Defence counsel raised this with the court during the pre-charge conference and asked for a curative instruction on the basis that "I can't ask her that".

[3] In his charge to the jury, the trial judge referred to the Crown closing and added:

Under our law, a complainant may not be asked questions about other sexual activity that she may have engaged in apart from the activity that forms the subject matter of the charge. In the result, [defence counsel] was prohibited from asking her such questions.

[4] When discussing the burden of proof, the trial judge said this:

[The appellant] does not have any obligation to prove that the DNA found in the swabs taken from [her] body is not his. He has no obligation to explain away the DNA evidence. He has no obligation to prove anything in this case. At all times the onus remains on the Crown to prove the guilt of [the appellant] beyond a reasonable doubt. That onus never shifts.

[5] In light of these instructions, we see no possibility for impermissible reasoning by the jury. Nor do we see any unfairness. A further admonition of the Crown's conduct by the judge was not necessary.

[6] The appellant seeks an extension of time to seek leave to appeal his sentence. The sentence imposed was, in its entirety, pursuant to a joint submission and there is no basis before us to disturb the trial judge's acceptance of that submission.

[7] The appeal as to conviction is dismissed and leave to appeal sentence is denied.

[8] We emphasize that there is and continues to be a publication ban in effect in this case.

M.L. Benotto J.A.

G.T. Trotter J.A.

David M. Paciocco J.A.