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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-11-27

Docket: C65013

Panel: Feldman, Gillese and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

J.A.S. Appellant

Counsel

Michael Dineen, for the appellant

Jamie Klukach, for the respondent

Hearing and Release

Heard and released orally: November 22, 2019

On appeal from: the conviction entered on November 3, 2017 by Justice Gregory Ellies of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was convicted of four counts of sexual abuse and one count of threatening bodily harm of his daughter. He raises two grounds of appeal against conviction.

[2] The first is that the trial judge erred by allowing the jury to use the evidence of the appellant's two convictions for assault of his wife on the issue whether the wife testified in favour of the appellant out of fear. He also ruled that the evidence of violence in the home could be used for the same purpose as well as to explain why the son resiled from his police statement at trial. The police statement was very important evidence that corroborated the complainant's evidence that she showered with her father. She said that many of the sexual assaults took place in the shower.

[3] We see no error in the trial judge's ruling or in his instruction to the jury on this issue. The evidence of the two convictions and the violence in the home was clearly relevant to the issue. The appellant argues that the fact that no details of the circumstances of the convictions were given in evidence left the jury to speculate about them. However, defence counsel at trial could have sought to flesh out the details if that would have been helpful to minimize the impact of the assault evidence. That was a tactical decision. Also, the trial judge warned the jury in his charge about propensity reasoning and did not overemphasize the point about the assaults and the other evidence of violence. He explained it briefly but directly.

[4] We see no error.

[5] The second issue raised on appeal is that the judge's review of the evidence of the appellant was brief and presented an unbalanced view for the jury.

[6] Again, we do not agree.

[7] The trial judge pointed out that the appellant denied all of the allegations. In defence counsel's closing to the jury he said little more than that. More importantly, the trial judge fairly put in his charge the defence position challenging the complainant's version of events and raising possible problems with it. This approach was fair and enured to the benefit of the appellant. It is also noteworthy that no objection to this part of the charge was taken by defence counsel at trial.

[8] The appeal is therefore dismissed.

K. Feldman J.A.

E.E. Gillese J.A.

B.W. Miller J.A.