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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 2019-06-24

Docket: C62800

Panel: Doherty, Watt and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

J.L. Appellant (Applicant)

Counsel:

• Keshav Agnihotri, for the appellant (applicant)
• Candice Suter, for the respondent

Heard: June 10, 2019

On appeal from: The conviction entered on November 25, 2015 and the sentence imposed on April 29, 2016 by Justice R. Lococo of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Overview

[1] The appellant, J.L., was found guilty by a jury of one count of sexual assault and one count of touching a person under the age of 16 for a sexual purpose. The complainant, T.W., is the appellant's stepdaughter. She was 13 at the time of the alleged assaults.

[2] The trial judge imposed a sentence of four years on the sexual touching count and stayed the conviction on the sexual assault charge.

[3] The appellant appeals conviction and sentence.

Facts

[4] T.W. went to live with her mother and the appellant in 2011. Before that, she had lived with her biological father (K.K.). T.W. testified that the appellant regularly sexually assaulted her between January and June 2012. The assaults took place at night in her bedroom and involved digital penetration and oral sex.

[5] The appellant testified and denied the allegations. He testified that T.W. had become a significant discipline problem by 2012 while she was living with the appellant and her mother. He had grounded her on occasion. T.W.'s mother was, however, primarily responsible for disciplining T.W.

[6] T.W. was taken into care by the Children's Aid Society in July of 2012. The Children's Aid Society had been involved with T.W. many times prior to 2012. They became involved in July of 2012 as a result of an incident involving T.W.'s friend, K.W.

[7] T.W. had an argument with her mother and went to K.W.'s home. While T.W. was at K.W.'s home, T.W.'s mother sent text messages to K.W. (who was 15-years old) inviting her to participate in a "threesome" with the complainant's mother and the appellant. K.W. told her mother about the text messages and her mother went to the police and contacted the Children's Aid Society. The Children's Aid Society removed T.W. from the care of her mother and the appellant. T.W.'s mother was later charged with invitation to sexual touching, contrary to s. 152 of the Criminal Code. She eventually pled guilty to the charge.

[8] In her testimony, T.W. said that she told her mother that the appellant was molesting her, but that her mother did not believe her. She also testified that the appellant repeatedly threatened her, telling her that if she told anyone he would tell the Children's Aid Society that she had initiated the contact and the Children's Aid Society would separate her from her siblings.

[9] T.W. testified that she did not trust the Children's Aid Society in 2012. She refused at times to speak to child protection workers about alleged abuse in the home. On one occasion, at least, she denied that the abuse had occurred when in fact she had been abused. T.W. testified that she lied to the Children's Aid Society workers and school counsellors because of the appellant's threats that she would be taken from her siblings if the Children's Aid Society became involved.

[10] T.W. eventually complained to her new foster mother about the sexual abuse in August 2013. She gave a statement to the police and the appellant was charged. T.W. indicated by this time she had been separated from her siblings and the Children's Aid Society had commenced child protection proceedings. T.W. believed she had nothing left to lose. She was made a Crown ward in 2014.

Grounds of Appeal

[11] The appellant advances four arguments in his factum. First, he makes submissions about the prejudicial effect of evidence led by the Crown concerning the conviction of T.W.'s mother on the charge of invitation to touch for a sexual purpose. Second, the appellant argues that the trial judge made various errors in respect of the appellant's pretrial motion for the production of documents in the possession of various third parties. Third, the appellant alleges errors in the charge to the jury. Fourth, the appellant submits that the sentence was demonstrably unfit.

[12] Counsel did not make oral submissions in support of the third or fourth grounds of appeal outlined above. We see no merit in either and do not propose to address them any further in these reasons.

The Mother's Conviction for Invitation to Sexual Touching

[13] The Crown sought to lead evidence in respect of the mother's attempt to solicit the involvement of K.W., T.W.'s 15-year old friend, in sexual activity with T.W.'s mother and the appellant. The attempted solicitation came via text messages. T.W. was with her friend when she received these messages.

[14] The Crown argued that the evidence of the conviction and the events on which it was based was relevant to show the reason the Children's Aid Society took T.W. out of the appellant's home in July 2012. The Crown further argued that the evidence was relevant to demonstrate the nature of the relationship between T.W. and her mother. T.W. had said that she told her mother about the sexual abuse and that her mother did not believe her. The Crown contended that evidence of the mother's sexual misconduct toward T.W.'s friend in the summer of 2012 provided an explanation for the mother's supposed disbelief of T.W. The Crown submitted that the evidence showed that T.W.'s mother did not come to T.W.'s support, not because she did not believe her daughter, but because she herself was interested in, and involved in, the sexual abuse of young girls.

[15] The trial judge agreed with the Crown's position, holding that evidence of the dysfunctional relationship between T.W. and her mother could be important in assessing T.W.'s credibility as it related to her description of the family dynamics and her mother's reaction to her allegations.

[16] Although the trial judge admitted the evidence, he was alive to the potential prejudice to the appellant from the evidence. He addressed that prejudice by strictly limiting the evidence that the Crown could lead in respect of the mother's conduct and her subsequent conviction. The trial judge indicated that he wanted to limit the evidence "to the extent possible to exclude indications of involvement [by the appellant]".

[17] Eventually, the Crown put the evidence of the mother's conviction on the invitation to sexual touching charge before the jury by reading to the jury from a document containing the allegation. The jury was also advised that T.W.'s mother had pled guilty to that charge. The evidence of the surrounding circumstances, including the text messages, was not put before the jury.

[18] Although counsel for the appellant had opposed the admissibility of the evidence for any purpose other than to explain why T.W. was taken into the care of the Children's Aid Society, he did agree, after he had lost the admissibility argument, with the manner in which the evidence was put before the jury. Contrary to counsel's submission in this court, there is nothing in the trial record to suggest that counsel did not have notice of the contents of the document read to the jury by Crown counsel.

[19] The Crown read the following to the jury:

[The complainant's mother] was charged that on or about the 3rd day of July, in the year 2012 in the City of St. Catharines, she did for a sexual purpose invite a person under the age of 16 years, namely [her daughter's friend] to directly or indirectly touch with a part of her body the body of [the complainant's mother] and/or [the appellant] to wit: to engage in a sexual encounter contrary to s. 152 of the Criminal Code …

[20] A copy of the document Crown counsel had read to the jury was not made an exhibit. The trial judge, in his instructions, did not refer specifically to the document, but instead summarized its contents without reference to the appellant's name.

[21] In his instructions, the trial judge repeatedly advised the jury that the evidence of T.W.'s mother's guilty plea and her conviction could not be used as evidence that the appellant had committed the offences. For example, the trial judge said:

However, since the Crown could not rely on the conduct involving [the complainant's mother] and [the complainant's friend] to establish any of the element of the charges against [the appellant] before the court, you must not use the agreed facts to help you conclude that the Crown has established any element of the offences charged or to help you to otherwise conclude that [the appellant] is guilty of the offences charged.

[22] Counsel for the appellant submits that, despite the instructions, the jury could well have concluded from the reference to the appellant in the charge against the mother that the appellant was the kind of person who engaged, or wanted to engage, in sexual activity with young girls. Counsel argues that, if the jury drew that conclusion, convictions were inevitable.

[23] The reference to the appellant's name in the charge against the mother was probably unnecessary given the purpose for which the evidence was admitted. However, there was no objection by the defence to the format in which evidence of the charge and plea was put before the jury. Nor did the language of the document allege any misconduct by the appellant.

[24] Having regard to the actual language of the document as it related to the appellant, the absence of any objection by the defence, but most significantly the powerful limiting instruction given by the trial judge, we conclude that the appellant was not prejudiced by the manner in which the mother's conviction was put before the jury.

[25] Lastly, we would note that although it is not entirely clear whether the appellant objects on appeal to the admissibility of the evidence regardless of its form, we agree with the trial judge's analysis as to the relevance of the evidence. It was properly admitted.

The Third Party Records Application

[26] The appellant brought an application under s. 278.3 of the Criminal Code prior to trial for an order requiring production of records in the control of:

• the District School Board of Niagara;
• the Children's Aid Society; and
• Pathstone Mental Health.

[27] The application described the records as "pertaining to prior allegations of sexual abuse made by [the complainant] against the appellant and her biological father [K.K.]. The applicant sought an order releasing to the defence the documents in the possession of the above-named parties concerning "enumerated instances of the complainant's recanted allegations of sexual abuse at the hands of the accused and another adult significant other".

[28] At the outset of his submissions in this court, counsel, relying on R. v. T.C. and R. v. Shearing, 2002 SCC 58, argued that because the appellant had received copies of the Children's Aid Society documents as part of the child protection proceedings, s. 278.3 of the Criminal Code, which governs the production of documents in the possession of third parties, had no application. Counsel submits that the appellant had the documents without any need for a production order. The appellant had undertaken to destroy the documents after the child protection proceedings were complete and to refrain from using the documents for any other purpose.

[29] We accept, however, the respondent's submission that the question of whether the appellant could have used any of the documents in his possession in the course of the trial did not arise in this trial. The appellant did not seek a ruling on whether he could use documents in his possession. Instead, the appellant chose to bring a third party records application, targeting, not only the Children's Aid Society but other entities in possession of documents that he said were relevant to the trial. The motion having been brought, it was incumbent on the trial judge to rule on the motion in accordance with the provisions in the Criminal Code governing the production of documents from third parties. The fact that the appellant was in possession of copies of some of the documents does not render s. 278.3 any less applicable on a motion to compel production of documents held by third parties.

(i) The Production for Inspection Order

[30] Section 278.3 applications proceed in two stages. At the first stage, the trial judge decides whether the third party record holder should produce any, some, or all of the requested documents to the trial judge for inspection by the trial judge: Criminal Code, s. 278.5. At the second stage of the application process, the trial judge decides whether any of the documents ordered produced should be provided to the defence: Criminal Code, s. 278.7.

[31] The trial judge can order production of the record for her inspection only if satisfied that the record is "likely relevant" to an issue at trial and that the production is necessary in the "interests of justice": s. 278.5(1). The "interests of justice" inquiry mandated by the section looks to the factors enumerated in s. 278.5(2). Those factors demand a consideration and balancing of important, but often competing interests. Clearly, when deciding whether to order production of the records, the trial judge is engaged in an exercise of discretion. This court will defer to that exercise of discretion unless the appellant demonstrates error in law, error in principle, or material misapprehension of the evidence.

[32] After reviewing the evidence proffered on the application by the appellant, the submissions of third parties and the complainant, and the relevant legal principles, the trial judge ordered the Children's Aid Society to produce for his examination records for the period beginning January 28, 2012 that pertained to T.W.'s allegations of sexual misconduct by the appellant or to recantations of those allegations by T.W. The trial judge declined to order production of any of the other documents sought by the appellant.

[33] We see no error in the exercise of his discretion. First, we accept his finding that insofar as the records held by Pathstone and the School Board were concerned, there was no evidence that those records contained anything which could assist the defence in respect of any issue at trial. It is not enough to establish "likely relevance" that the records may contain information about T.W. and her relationship with the appellant.

[34] We also defer to the trial judge's findings that the appellant had not met his onus to show that any records pertaining to T.W.'s biological father and allegations she made against him were "likely relevant" to any issue at the appellant's trial. As correctly observed by the trial judge, the only evidence of allegations against the biological father of sexual misconduct came from the applicant in his affidavit. Nor was there clear evidence that T.W. had ever made allegations that she was sexually assaulted by her biological father or that she had recanted any such allegation. It was open to the trial judge to conclude that the uncertain nature of the suggestions that T.W. had made allegations against her biological father and then recanted those allegations, combined with the fact that the supposed allegations concerned someone other than the appellant, combined to justify the finding that the documents were not likely relevant, or necessary to the making of full answer and defence by the appellant.

[35] Finally, the trial judge rejected the "basket clause" component of the application, which sought production of any records tending to show that the complainant had a tendency to "lie and blame others in order to avoid responsibility for her actions". Like the trial judge, we view this basis for a production claim as far too "amorphous" to justify the significant invasion of T.W.'s privacy that would flow from the granting of the order.

(ii) The Production to the Defence Order

[36] At the second phase of the application, the trial judge, after reviewing the documents he had ordered the Children's Aid Society to produce at the inspection phase, ordered copies of some of those documents, with redactions, be provided to the appellant.

[37] Counsel for the appellant has not made any specific submissions challenging the ruling of the trial judge at the second stage of the production application. His submissions focused on the trial judge's ruling at the first stage. We have not been convinced that the trial judge made any error in respect of the determination as to what part of the documents he had ordered produced should be passed on to accused.

[38] We reject this ground of appeal.

Disposition

[39] As indicated at the end of oral argument, the appeal from conviction and sentence are dismissed.

"Doherty J.A."

"David Watt J.A."

"G. Pardu J.A."