



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    that could identify the victim or a witness shall not be published in any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 complainants 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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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

CITATION: R. v. Gadam, 2019 ONCA 345

DATE: 20190429

DOCKET: C62456

Lauwers, van Rensburg and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Srinivasan Venkata Gadam

Appellant

Matthew R. Gourlay, for the appellant

Christine Tier and Kevin Rawluk, for the respondent

Heard and released orally: April 25, 2019

On appeal from the conviction entered on May 5, 2016 by Justice
    Brian W. Trafford of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION


[1]

The appellant was convicted of a single count of sexual assault (
Criminal

Code
, s. 271) involving a number of acts committed over the course
    of five months. He received a sentence of three years imprisonment.

[2]

The appellant challenges his conviction on the basis of a fresh evidence
    application alleging ineffective assistance of trial counsel (not Mr. Gourlay).

[3]

The appellant and the complainant were acquaintances. The appellant
    defended the case by asserting that all sexual contact between the complainant
    and himself was consensual and part of an ongoing extramarital affair. Trial
    counsel confronted the complainant with telephone records purporting to
    establish over 900 telephone calls between them during the relevant time,
    roughly half of which were initiated by the complainant. The complainant denied
    the authenticity of the records put to her.

[4]

The trial judge warned counsel that the records would be inadmissible
    unless authenticated. Trial counsel, however, failed to adduce evidence from
    the service provider. The appellant did not testify and authenticate the records
    himself. The trial judge rightly disregarded the records. He found the evidence
    of the complainant credible and was satisfied of the appellants guilt beyond a
    reasonable doubt.

[5]

In his affidavit filed as part of the fresh evidence, trial counsel
    admitted that he gave no thought to the matter of authentication. In his
    affidavit, the appellant said that he would have testified had he been properly
    advised on the issue.

[6]

Very experienced counsel for the Crown fairly concedes that there must
    be a new trial based on the conduct of trial counsel. We accept this
    concession. We agree that, in failing to address the authentication issue,
    trial counsels performance fell below the standard of reasonable competence.
    His missteps prejudiced the appellant in a manner that might have impacted on
    the verdict.

[7]

We admit the fresh evidence, allow the appeal, set aside the conviction
    and order a new trial.

P. Lauwers J.A.

K. van Rensburg J.A.

Gary Trotter J.A.


