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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court of Appeal for Ontario

Date: 20240108 Docket: COA-22-CR-0412

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

Between

His Majesty the King Respondent

and

K.S. Appellant

Counsel: John Fennel, for the appellant Nicole Rivers, for the respondent

Heard and released orally: December 22, 2023

On appeal from the conviction entered by Justice Neil L. Kozloff of the Ontario Court of Justice on December 30, 2021.

Reasons for Decision

[1] This is an appeal from convictions for sexual assault and forcible seizure. The sole ground of appeal is that the trial judge failed to provide the self-represented appellant with assistance in advancing a s. 7 lost evidence claim.

[2] The alleged lost evidence involves messages exchanged between the appellant and complainant on WhatsApp. The police seized the appellant’s two phones, containing WhatsApp, under a search warrant. However, the appellant repeatedly refused to provide the police with passwords to enter the phones. The police were unable to crack these passwords. When the phones were returned to the appellant, they were disabled.

[3] The appellant says that the trial judge failed to provide him with the assistance necessary to make a s. 7 lost evidence claim. However, based upon the fresh evidence received on appeal, which we admit on consent, there was no viable lost evidence claim. The messages remained in the control of the appellant throughout and he chose not to provide the police with access to them. Therefore, the lost evidence was never in the control of the police or Crown. Further, there is no evidence to suggest that the police efforts to gain access to the phones after the appellant’s repeated refusals to provide his passwords were anything other than bona fides in nature. Accordingly, those efforts cannot be characterized as unacceptable negligence.

[4] In any event, we note that the Crown’s case was a formidable one, including an inculpatory email sent to the complainant in the wake of the offence, where the appellant apologized to the complainant and acknowledged having “sinned”. In these circumstances, it is difficult to imagine that the WhatsApp messages, even if they had been accessible, would have benefitted the defence.

[5] The appeal is dismissed.

“Fairburn A.C.J.O.”

“Doherty J.A.”

“G.T. Trotter J.A.”