



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. J.A.S., 2019 ONCA 936

DATE: 20191127

DOCKET: C65013

Feldman, Gillese and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J. A. S.

Appellant

Michael Dineen, for the appellant

Jamie Klukach, for the respondent

Heard and released orally: November 22, 2019

On appeal from the conviction entered on November 3, 2017
    by Justice Gregory Ellies of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

The appellant was convicted of four counts of sexual abuse and one count
    of threaten bodily harm of his daughter. He raises two grounds of appeal
    against conviction.

[2]

The first is that the trial judge erred by allowing the jury to use the
    evidence of the appellants two convictions for assault of his wife on the
    issue whether the wife testified in favour of the appellant out of fear. He
    also ruled that the evidence of violence in the home could be used for the same
    purpose as well as to explain why the son resiled from his police statement at
    trial. The police statement was very important evidence that corroborated the
    complainants evidence that she showered with her father. She said that many of
    the sexual assaults took place in the shower.

[3]

We see no error in the trial judges ruling or in his instruction to the
    jury on this issue. The evidence of the two convictions and the violence in the
    home was clearly relevant to the issue. The appellant argues that the fact that
    no details of the circumstances of the convictions were given in evidence left
    the jury to speculate about them. However, defence counsel at trial could have
    sought to flesh out the details if that would have been helpful to minimize the
    impact of the assault evidence. That was a tactical decision. Also, the trial
    judge warned the jury in his charge about propensity reasoning and did not
    overemphasize the point about the assaults and the other evidence of violence.
    He explained it briefly but directly.

[4]

We see no error.

[5]

The second issue raised on appeal is that the judges review of the
    evidence of the appellant was brief and presented an unbalanced view for the
    jury.

[6]

Again, we do not agree.

[7]

The trial judge pointed out that the appellant denied all of the
    allegations. In defence counsels closing to the jury he said little more than
    that. More importantly, the trial judge fairly put in his charge the defence
    position challenging the complainants version of events and raising possible problems
    with it. This approach was fair and enured to the benefit of the appellant. It
    is also noteworthy that no objection to this part of the charge was taken by
    defence counsel at trial.

[8]

The appeal is therefore dismissed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

B.W.
    Miller J.A.


