Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20220125 Docket: C68633

Fairburn A.C.J.O., Gillese and Trotter JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

M.P.L. Applicant (Appellant)

Counsel: Phillip Dinis, for the appellant Brett Cohen, for the respondent

Heard: January 24, 2022 by video conference

On appeal from the convictions entered on October 2, 2019 by Justice R. John Harper of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was found guilty of 10 offences for sexually abusing his former partner’s daughter who was 8 to 9 years old at the time. The abuse involved touching, oral sex, mutual masturbation, and attempted anal intercourse.

[2] Pursuant to s. 715.1 of the Criminal Code, the victim adopted the contents of a video statement she gave to the police, in which she detailed the appellant’s escalating sexual behaviour towards her. The trial judge found the victim to be a very compelling and articulate witness; she displayed a verbal ability well beyond her years. Her evidence was not undermined in cross-examination; indeed, the trial judge found that, “In many respects her evidence was enhanced.”

[3] The victim’s mother and grandmother testified about living arrangements at the house and the victim’s subsequent disclosure. The evidence painted a picture of hostility and violence in the household. The trial judge found that the victim lived in “rational fear.” Moreover, there was animosity between the appellant and the grandmother.

[4] The appellant testified and denied all allegations. In the course of his evidence, he portrayed the victim’s grandmother as controlling and crazy, and the victim’s mother as a crazy person who had tried to kill him. After the victim’s disclosure, the appellant moved in with another woman. He shared his view about the victim’s mother and grandmother. This information made his new partner fearful, both for herself and for her own children. Yet, the appellant did not tell her that the victim’s grandmother lived across the street. In cross-examination, it was suggested to him that he was keeping it a secret. The appellant disagreed that it was a secret; he said it just never came up. Based on his new partner’s evidence, the trial judge found that the appellant spent many hours in the garage where, through a window, and undetected, he could see into the grandmother’s living room, and could see the victim when she came for visits.

[5] The trial judge gave detailed reasons for accepting the victim’s evidence and equally detailed reasons for rejecting the appellant’s evidence. He found that it did not raise a reasonable doubt.

[6] The appellant submits that the trial judge erred in admitting irrelevant and prejudicial evidence relating to the appellant’s use of pornography on his cell phone. He also submits that the trial judge erred in admitting the evidence concerning the location of the grandmother’s house and the time the appellant spent in his new partner’s garage. We do not accept these submissions.

[7] The pornography evidence was relevant to a material issue. The victim testified that the appellant showed her pornographic images on his cellphone for the purpose of teaching her how to perform oral sex on him. Evidence concerning the appellant’s use of pornography in other contexts tended to support the victim’s evidence that the appellant accessed this content on his phone. There was no objection to the admission of this evidence. Moreover, the trial judge did not use this evidence for any prohibited propensity purpose.

[8] Similarly, we see no error in the admission or use of the evidence concerning the appellant’s time spent in the garage. The trial judge restricted his use of this evidence to an assessment of the appellant’s credibility, focusing on the fact that, after telling his new partner about the hostility that the victim’s mother and grandmother harboured for him, he did not tell his new partner that the grandmother lived across the street. The trial judge inferred that the appellant kept this to himself so that he could continue to watch the victim when she visited her grandmother across the street.

[9] The appellant further submits that the trial was unfair because the Crown was permitted to cross-examine three of its own witnesses without first establishing the threshold requirements in s. 9(2) of the Canada Evidence Act. He submits that this was achieved through the guise of attempting to refresh the memories of these witnesses by having them review their police statements.

[10] We do not accept this submission. Although the procedure for having the witnesses refresh their memories might have been somewhat relaxed, there was no objection from defence counsel at trial. In the circumstances, it was appropriate that these witnesses be given the opportunity to review their statements. Contrary to the appellant’s submissions, cross-examination did not follow; instead, proper examinations-in-chief continued. In any event, nothing prejudicial or inadmissible was elicited.

[11] The appeal is dismissed.

“Fairburn A.C.J.O.”

“E.E. Gillese J.A.”

“Gary Trotter J.A.”