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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20231117 Docket: C69519

Tulloch C.J.O., Sossin and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

D.W. Appellant

Counsel: Jessica Zita, for the appellant Benita Wassenaar, for the respondent

Heard: In writing

On appeal from the conviction entered on January 17, 2020 by Justice David A. Broad of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant, D.W., was convicted of sexual assault, sexual interference, and uttering a threat, and was sentenced to a global sentence of eight years in the penitentiary, less pre-sentence credit of 1221 days.

[2] The complainant, C.D., was the daughter of D.W.’s long-term partner, D.B.(C.). D.W. committed the acts of sexual abuse over the span of three years, when C.D. was between five to eight years old.

[3] D.W. appeals his conviction on the basis that the trial judge erred in permitting the Crown to adduce improper reply evidence. We do not agree. We see no error in the trial judge’s decision to admit the reply evidence in question. Therefore, the appeal is dismissed for the reasons that follow.

A. Facts

[4] D.W. was common-law partners with D.B.(C.), the mother of the complainant, C.D. The appellant is not C.D.’s biological father, but he was involved in C.D.’s life from the time that she was one year old. He was a parental figure to C.D., and C.D. believed he was her biological father during the time the offences were committed. D.W. and D.B.(C.) share two biological sons.

[5] D.W. began sexually abusing C.D. when she was five years old. C.D. described the sexual abuse as consisting of the appellant putting his penis in her mouth, in her vagina, and in her "butt.” She also described incidents in which D.W. penetrated her with a pink vibrator.

[6] The abuse occurred in the family home. Specifically, D.W. would sexually assault C.D. in the bathtub. The appellant threatened to harm C.D. and her mother if she disclosed the abuse, giving rise to the charge for uttering a threat.

[7] The abuse led to numerous bladder infections for C.D. She also experienced bleeding out of her vagina. Her mother, D.B. (C.) testified that she took C.D. to the doctor in relation to genital pain more than ten times.

[8] In 2013, D.W. was arrested for unrelated criminal charges, namely sexual assault, choking, and forcible confinement.

[9] As a result of these charges, the appellant was detained briefly and released on bail on April 26, 2013. His bail was varied on July 17, 2013. Both orders included the condition: “[r]eside with your surety and be amenable to the routine and discipline of that home.” His surety was his stepfather, B.M.

[10] D.B.(C.) testified that D.W. did not comply with his bail conditions. During the period he was on bail, he continued to reside at her residence.

[11] The defence later called D.W. to testify. He testified that he complied with the bail conditions and continued to reside with B.M. for the 22-month duration of his bail.

[12] Flowing from this testimony, the Crown called B.M. in reply. B.M. testified that he acted as surety for his stepson, D.W. He was aware that the terms required D.W. to reside in his home but testified that D.W. only lived with him for “about a month” before moving back in with D.B.(C.).

[13] D.W. was ultimately convicted of the 2013 charges. In February 2015, he was sentenced to a carceral term of just under a year. He was released on October 20, 2015.

[14] After D.W. was released, he continued to reside with D.B.(C.), although they did not resume their romantic relationship. In June 2016, D.B.(C.) caught D.W. filming her in the shower without her consent. After the shower incident, D.W. moved out permanently.

[15] Shortly thereafter, in August 2016, D.B.(C.) was granted custody of the two biological children she shared with D.W. However, all three children (including C.D.) had unsupervised access visits with D.W. The children reported negative experiences during these visits, so D.B.(C.) sought help from Childrens Aid Society and the police to obtain a restraining order against D.W.

[16] In September 2017, D.B.(C.) was granted this restraining order. When she shared the news of the restraining order with C.D., C.D. seemed happy. A few days later, C.D. confided in her mother that she had a dream in which D.W. put his “thing” in her mouth and that “white stuff” was coming out. After this disclosure, D.B.(C.) brought C.D. to the police, and the details of the current offences came to light.

[17] The appellant was charged and subsequently convicted of the sexual offences relating to C.D. He was sentenced to 8 years incarceration, with an ancillary order for lifetime registration under the Sex Offender Information Registration Act.

B. Issue and Analysis

[18] The appellant submits that the trial judge erred in permitting the Crown to call B.M.’s reply evidence.

[19] The respondent submits that it was within the trial judge’s discretion to permit the Crown to call reply evidence.

[20] We agree with the respondent.

[21] The Crown is permitted to call evidence in reply where: 1) the defence has raised some new matter or defence with which the Crown had no opportunity to deal and that the Crown could not reasonably have anticipated, or 2) some matter that emerged during the Crown’s case had taken on added significance as a result of evidence adduced in the defence case: R. v. Donnelly, 2023 ONCA 243, at para. 18; R. v. K.T., 2013 ONCA 257, 295 C.C.C. (3d) 283, at para. 43.

[22] In this case, the matter of D.W.’s non-compliance with his bail conditions took on added significance as a result of his testimony that he complied with the bail conditions for the entire 22-month period.

[23] D.B.(C.)’s initial evidence that D.W. breached his bail was relevant to whether he had an opportunity to commit the offences, and to his general credibility.

[24] However, in light of D.W.’s conflicting testimony regarding compliance with his bail conditions, the question of whether D.W. complied with his bail took on added significance. Flowing from D.W.’s testimony, the issue before the court shifted from whether D.W. was willing to breach a court order generally, to whether he was willing to lie to the trial judge in the context of this specific proceeding. Accordingly, in a case that turned on the credibility of the witnesses, the matter of D.W.’s bail compliance took on added significance. It was, therefore, within the trial judge’s discretion to admit the reply evidence.

[25] Further, the conduct of the parties in the context of this proceeding supports the admission of the evidence. The Crown raised the issue of calling D.W.’s surety to give reply evidence multiple times during the proceedings. The defence did not object at the time. Although not specifically asked, there was opportunity for defence counsel to voice any concerns. In the absence of any objection by defence counsel, it was reasonable for the trial judge to permit the reply evidence.

[26] We see no error in the trial judge’s decision to admit the evidence of B.M. in reply. Although the appellant initially raised a sentence appeal, this ground of appeal has been abandoned. Accordingly, the appeal is dismissed.

“M. Tulloch C.J.O.”

“L. Sossin J.A.”

“J. Copeland J.A.”