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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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

CITATION: R. v. Boodram, 2020 ONCA 618

DATE: 20201002

DOCKET: C65205

Simmons, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Burton Boodram

Appellant

R. Craig Bottomley and Andrea VanderHeyden, for the appellant

Sean Horgan, for the respondent

Heard: September 28, 2020 by video conference

On appeal from the convictions entered on January 11, 2018 by Justice G. Paul Renwick of the Ontario Court of Justice.

REASONS FOR DECISION

[1] After hearing this appeal, we endorsed the Appeal Book: “For reasons to follow, the appeal is dismissed.” These are our reasons.

[2] Following a judge alone trial, the appellant was found guilty of accessing, possessing and attempting to distribute child pornography and obstructing police. The accessing charge was stayed pursuant to Kienapple.[^1] Convictions were entered for the other charges. The appellant appeals from his convictions and raises two issues on appeal.

[3] First, the appellant argues that the trial judge engaged in prohibited reasoning by relying on evidence of other discreditable conduct to find the appellant guilty. The appellant points out that the Crown failed to bring a similar fact application and that the trial judge gave himself only a single-sentence boiler plate instruction against propensity reasoning. Moreover, the appellant submits that in his reasons, the trial judge expressly relied on the other discreditable conduct evidence as circumstantial evidence that assisted him in finding that the appellant downloaded the child pornography onto the two cell phones found in the appellant’s possession.

[4] We do not accept this submission. No issues were raised concerning the admissibility or use of the impugned evidence at trial. In his reasons, the trial judge identified the issue to which the evidence was relevant and concluded that it was sufficiently probative of that issue to warrant his reliance on it.

[5] The appellant testified it was someone else (his friend, Chris – surname and location unknown) who downloaded child pornography onto the cell phones found in the appellant’s possession. In that context, the trial judge concluded the evidence of the appellant's fantasizing about having sexual relations with a child and role playing with a friend about having a threesome with a child was relevant and probative on the issue of identity. The trial judge concluded that that evidence and the evidence of use of child pornography in on-line discussions with his friend were “such unique events that they assist me to find that [the appellant] used the two cell phones found near his bed to search for and obtain child pornography in order to stimulate and satisfy his professed sexual interest in children.”

[6] We see no error in this conclusion. The trial judge cautioned himself appropriately against impermissible propensity or bad character reasoning. The evidence in question satisfied the Handy[^2] criteria for admissibility. It was relevant to a specific issue at trial (identity) and its probative value in relation to that issue outweighed any potential prejudice.

[7] Second, the appellant argues that the trial judge erred in relying on his observations of the appellant's hand movements while testifying in determining that the appellant was capable of operating a cell phone. The appellant submits that in doing so, the trial judge effectively disregarded the expert evidence adduced by the appellant at trial and rendered the trial unfair by failing to give the defence an opportunity to make submissions regarding the observations.

[8] We do not accept this argument. The question of the appellant's ability to operate a cell phone because of a physical disability was a live issue at the trial. The expert on whom the appellant relied had not tested the appellant's practical physical functioning or ability to adapt over time so that he could perform routine tasks. Crown witnesses testified that the appellant could operate a cell phone. While testifying, the appellant expressly invited the trial judge to observe his hands and his ability to move his hands. Having done so, it is not now open to the appellant to complain about the trial judge's observations made while he (the appellant) was in the witness box.

[9] The appeal is dismissed.

“Janet Simmons J.A.”

“David Watt J.A.”

“L.B. Roberts J.A.”

[^1]: Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[^2]: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.