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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-04-29

Docket: C62456

Panel: Lauwers, van Rensburg and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Srinivasan Venkata Gadam Appellant

Counsel:

• Matthew R. Gourlay, for the appellant
• Christine Tier and Kevin Rawluk, for the respondent

Heard and released orally: April 25, 2019

On appeal from: the conviction entered on May 5, 2016 by Justice Brian W. Trafford of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of a single count of sexual assault (Criminal Code, s. 271) involving a number of acts committed over the course of five months. He received a sentence of three years' imprisonment.

[2] The appellant challenges his conviction on the basis of a fresh evidence application alleging ineffective assistance of trial counsel (not Mr. Gourlay).

[3] The appellant and the complainant were acquaintances. The appellant defended the case by asserting that all sexual contact between the complainant and himself was consensual and part of an ongoing extramarital affair. Trial counsel confronted the complainant with telephone records purporting to establish over 900 telephone calls between them during the relevant time, roughly half of which were initiated by the complainant. The complainant denied the authenticity of the records put to her.

[4] The trial judge warned counsel that the records would be inadmissible unless authenticated. Trial counsel, however, failed to adduce evidence from the service provider. The appellant did not testify and authenticate the records himself. The trial judge rightly disregarded the records. He found the evidence of the complainant credible and was satisfied of the appellant's guilt beyond a reasonable doubt.

[5] In his affidavit filed as part of the fresh evidence, trial counsel admitted that he gave no thought to the matter of authentication. In his affidavit, the appellant said that he would have testified had he been properly advised on the issue.

[6] Very experienced counsel for the Crown fairly concedes that there must be a new trial based on the conduct of trial counsel. We accept this concession. We agree that, in failing to address the authentication issue, trial counsel's performance fell below the standard of reasonable competence. His missteps prejudiced the appellant in a manner that might have impacted on the verdict.

[7] We admit the fresh evidence, allow the appeal, set aside the conviction and order a new trial.

"P. Lauwers J.A."

"K. van Rensburg J.A."

"Gary Trotter J.A."