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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario Date: 20231106 Docket: C69218

Before: Harvison Young, Thorburn and Favreau JJ.A.

Between: His Majesty the King Respondent

And

Denis Levesque Appellant

Counsel: Cassandra Richards, for the appellant Philippe Cowle, for the respondent

Heard: September 22, 2023

On appeal from the conviction entered on November 27, 2019, by Justice Michel Z. Charbonneau of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was found guilty of two counts of sexual assault, one count of sexual touching and one count of showing pornographic materials to a minor.

[2] The complainant was eight years old at the time of the offences. The appellant was friends with the complainant’s father. The Crown’s theory at trial was that the offences occurred over the Christmas holidays in late December 2016 and early January 2017 while the complainant was staying at her father’s home.

[3] The trial judge found that the appellant touched the complainant’s breasts and genitals at least twice, that one instance occurred at the home of the complainant’s father and that another instance occurred at the home of the complainant’s grandmother. [1]

[4] The appellant argues that the trial judge erred in finding him guilty of the incident at the grandmother’s house. He claims this incident did not form part of the charges before the court and that the trial Crown explicitly stated during the trial that the incident at the grandmother’s house did not form part of the charges.

[5] We do not accept this ground of appeal.

[6] The appellant relies on a few parts of the trial transcript where the trial Crown raised concerns about the scope of the investigating officer’s testimony, arguing that these passages show that the Crown was not seeking a conviction based on incidents that may have occurred at the grandmother’s house. These passages are ambiguous at best. The appellant’s position is that the passages relate to the scope of evidence provided by the investigating officer and suggest that the Crown had concerns about the investigator giving evidence about an unindicted incident. However, from the exchange in the transcript, it is hard to discern the specific area of concern.

[7] In any event, as held in R. v. Ranger (2003), 67 O.R. (3d) 1 (C.A.), at para. 134, leave to appeal refused, [2011] S.C.C.A. No. 416, while the Crown is generally required to prove the particulars in an indictment, the Crown is not bound to prove its theory of the case for the court to enter a conviction. If the Crown presents a particular theory of the case, a defendant can be convicted based on a different theory, but only if the defendant is “able to present a full and fair defence”: Ranger, at para. 134; R. v. Groot (1998), 41 O.R. (3d) 280 (C.A.), aff’d R. v. Groot, [1999] 3 S.C.R. 664.

[8] In this case, the incident at the grandmother’s house fell within the scope of the indictment. As submitted by the Crown, the indictment did not provide specific particulars of the location where the sexual assaults and incidents of sexual touching occurred. Rather, the indictment alleged that the instances of sexual assault and sexual touching occurred between December 28, 2016 and January 8, 2017 in the town of Hawkesbury. The convictions entered by the trial judge did not fall outside the scope of the indictment. [2]

[9] In addition, there was no apparent trial unfairness and the appellant presented no evidence that his strategy at trial would have been different even if the Crown theory explicitly included the incident at the grandmother’s house. The complainant testified that the appellant had touched her breasts and her vagina while she was at her father’s house and at her grandmother’s house. The appellant’s trial counsel cross-examined the complainant extensively on her evidence that the appellant touched her breasts and vagina at the grandmother’s house. Trial counsel also made closing submissions addressing this aspect of the complainant’s evidence, arguing that it showed inconsistencies between the complainant’s evidence at the preliminary inquiry and at trial. However, trial counsel did not take the position that the evidence of what occurred at the grandmother’s house did not form part of the indictment and raised no issues of trial fairness in relation to this evidence.

[10] Given the scope of defence counsel’s cross-examination and closing submissions at trial, it is evident that there was no misunderstanding regarding the scope of the charges and the evidence that supported them on the part of trial counsel. There was accordingly no trial unfairness.

[11] We are therefore not persuaded by this ground of appeal.

[12] Prior to the hearing of the appeal, the appellant abandoned his second ground of appeal, which related to the trial judge’s assessment of corroborative evidence.

[13] Accordingly, the appeal is dismissed.

“A. Harvison Young J.A.”

“Thorburn J.A.”

“L. Favreau J.A.”

Footnotes

[1] The “grandmother” referred to by the complainant and in the trial judge’s reasons is not the complainant’s biological grandmother but her father’s girlfriend’s mother.

[2] The complainant’s evidence was that she was at the grandmother’s house on December 24, 2016. However, her mother testified that she was at her father’s house starting after Christmas, specifically as of December 26, 2016. The trial judge found that the complainant’s recollection of specific dates was understandably unreliable. He accepted the mother’s evidence that the complainant would have been at the father’s house after Christmas, which means that the incident at the grandmother’s house falls within the scope of the dates in the indictment. In any event, the appellant did not take issue with dates in the indictment at trial or on appeal.