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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

DATE: 20210624

DOCKET: C65626

Watt, Benotto and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

J.J. R.-M. Appellant

Counsel: Scott Reid, for the appellant Jeremy D. Tatum, for the respondent

Heard: May 19, 2021 by video conference

On appeal from the conviction entered on January 31, 2018 and the sentence imposed on March 1, 2018 by Justice Meredith Donohue of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant appeals his conviction before a judge and jury on counts of sexual interference and sexual assault of his stepdaughter. He says that the trial judge made the following reversible errors:

a. She erred in ruling that certain post-incident evidence should be admitted;

b. She erred in failing to instruct the jury to disregard an improper aspect of the Crown’s closing which suggested that the complainant’s behavioural issues were related to the sexual abuse by the appellant;

c. She erred in refusing to exclude photographs of the defendant and the complainant taken in her bedroom on grounds that it violated s. 8 of the Canadian Charter of Rights and Freedoms.

[2] There is no merit to any of these grounds for the following reasons.

The Post-Incident Conduct

[3] The appellant’s adult daughter was a witness at the trial. She testified that during a visit with the appellant while he was in custody after being charged, the appellant had asked her to destroy a black bag containing the complainant’s clothing which he had left in an outbuilding near the family’s home. The Crown brought a pre-trial motion asking that this evidence be admitted as it was after-the-fact conduct relevant to an issue at trial.

[4] There was no dispute as to the relevance of the evidence to the allegations. It was anticipated that there would be evidence led that the appellant had bought his stepdaughter see-through clothing that he asked her to wear with nothing on underneath while her mother was absent. The heart of the appellant’s submissions on appeal is that the trial judge erred in failing to weigh the probative value of this evidence against its prejudicial effect. He argues that the prejudicial effect was high because, in his view, a jury would be likely to assume that the daughter was telling the truth unless there was evidence of motivation on her part to lie. While the appellant’s counsel was of the view that there was such motivation, this was evidence that was bad character evidence, including evidence that the appellant physically abused his children, that he had abducted them and spirited them out of their home country illegally, and that he had reacted very negatively when his daughter “came out” to him. This reality put the appellant in an “untenable” position because he was faced with the choice of addressing the daughter’s evidence on its own terms, or introducing bad character evidence.

[5] We do not agree. As the appellant conceded, the evidence was highly probative in the circumstances. In her ruling allowing the Crown’s application, the trial judge correctly instructed herself on the applicable principles of the law, and there is no suggestion that her instructions to the jury erred with respect to the treatment of post-incident conduct. The appellant cross-examined the witness extensively on her motivation to lie due to her father’s reaction to her coming out, and to her report of having been sexually assaulted on one occasion. In addition, the appellant and the appellant’s wife were both rigorously cross-examined on discrepancies between their respective testimonies as to where the black bag was found.

[6] In short, we see no error. As the trial judge correctly held, it was up to the jury to decide whether the appellant had asked his daughter to find and destroy the bag. The material question was whether the appellant had made this request. The defence made strategic decisions as to what factors it brought out that could constitute motives to lie on the daughter’s part and rigorously cross-examined her on them. There was no basis for excluding this evidence as submitted by the appellant.

The Crown’s Closing Submission

[7] The appellant takes issue with the Crown’s comment in its closing to the jury that the complainant’s behaviour after the summer during which the alleged incidents took place “made sense” because it was “more in keeping with that summer she had after being sexually assaulted.”

[8] The appellant claims that this statement was entirely speculative, prejudicial, and rendered the trial unfair. We disagree. First of all, we note that the defence closing also contained statements that arguably invited speculation in the other direction. More importantly, there was no objection from Mr. Reid, who was also the trial counsel. This is particularly striking given that following the charge to the jury, counsel asked for, and the trial judge made, some clarifying instruction to the jury. He did not raise the issue of the closing. Closing submissions are to be given significant latitude, and the trial judge’s charge was balanced in that it included a fair summary of both sides’ positions.

The s. 8 Argument

[9] Finally, the appellant submitted in his factum that the trial judge erred in ruling that the circumstances of the delivery of certain photos to the police did not violate his s. 8 rights. The photos had been inadvertently found by the appellant’s daughter on her (disabled) sister’s tablet, and the daughter who found them downloaded them so they could be provided to the police. The trial judge made her finding on the basis that that the daughter who provided the photos to the police was acting as an independent actor and not as a state agent, and that those actions were not subject to s. 8 scrutiny. We see no error in this conclusion and no merit in this ground of appeal.

[10] The appeal is dismissed.

“David Watt J.A.”

“M.L. Benotto J.A.”

“A. Harvison Young J.A.’