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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

DATE: 20210901 DOCKET: C67307

Paciocco, Nordheimer and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

T.C. Appellant

Counsel: William Gilmour, for the appellant Katie Doherty, for the respondent

Heard: August 31, 2021 by videoconference

On appeal from the convictions entered on May 23, 2019 by Justice Gordon D. Lemon of the Superior Court of Justice sitting with a jury.

Reasons for Decision

[1] T.C. appeals his convictions for sexual exploitation, sexual assault, and sexual interference. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

[2] The appellant was accused of sexually abusing his stepdaughter over a period of three years from the time when the stepdaughter was 13 until she was 16. It is alleged that the abuse occurred two to three times per week.

[3] The appellant advances three grounds of appeal. First, he alleges that the trial judge erred in not allowing him to adduce evidence regarding a particular email that the stepdaughter had told her friends she had obtained from the appellant’s email account. The appellant wished to advance an argument that this email, along with some related messages, demonstrated the technical skill that the stepdaughter possessed that would have allowed her to fabricate certain earlier text messages that she had and that were placed into evidence.

[4] The trial judge ruled that the emails were inadmissible. He noted that the emails were created some months after the appellant’s arrest and raised an issue that was collateral to the issues to be addressed in the trial. He also found that the emails were of little probative value. The trial judge consequently concluded that the emails were irrelevant and refused to allow them to be placed into evidence.

[5] We do not see any error in the trial judge’s conclusion on this issue. We do not agree that the emails necessarily constituted a collateral matter since it is possible that the emails could have supported a suggestion of animus by the complainant. However, we would defer to the trial judge’s balancing of the probative value versus prejudicial effect of this evidence in respect of its admissibility. Lastly, we note that the refusal to admit these emails did not hamper the appellant’s ability to cross-examine the stepdaughter regarding the allegation that the much earlier text messages, that were put into evidence, had been fabricated by her.

[6] The second ground of appeal is that the trial judge, in his instructions to the jury, improperly emphasized a particular piece of evidence, that is, a towel that was found by the police and that had the appellant’s DNA on it. We do not see any merit to this argument. The portion of the final instructions about which the appellant complains was part of the trial judge’s recitation of the Crown’s position at trial. The trial judge simply repeated what the trial Crown had advanced as a submission regarding the relevance of the towel and what the jury should take from it. The trial judge did not advance this submission himself nor did he, in any way, suggest that he agreed with it. We also note that a draft of the final instructions, with this portion included, was provided to counsel and no objection was made to it.

[7] The third ground of appeal is that the trial judge erred in his answer to a question that the jury asked regarding a test that the complainant said she had undergone that related to her allegations. The trial judge properly told the jury that there was no evidence regarding the results of this test and that they should not speculate regarding it. We also note that the trial judge’s response to the question was the same in content that defence counsel had asked for as a response to the question.

[8] For these reasons, the appeal was dismissed.

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”

“S. Coroza J.A.”