



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. K.L., 2018 ONCA 792

DATE: 20181002

DOCKET: C60643

LaForme, Watt and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.L.

Appellant

Alexander Ostroff, for the appellant

David Friesen, for the respondent

Heard: September 24, 2018

On appeal from the conviction entered on March 14, 2015
    by Justice Leitch of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant and the complainant met in 2002 and moved in together within
    three months. Their first son was born in 2006. They married in 2007. They had
    a second son in 2008. The relationship ended in 2009. Shortly thereafter the
    complainant alleged that the appellant abused her, verbally, physically, and
    sexually, during the relationship.

[2]

The complainant alleged a number of incidents took place in which she
    was sexually assaulted, in addition to an incident involving a non-sexual
    assault, and another in which she was threatened with sexual violence. The
    sexual assault allegations involved the appellants demands that the
    complainant submit to anal intercourse and vaginal fisting.

[3]

The appellant testified that he and the complainant had sex often, in
    fact, so many times that he could recall no specific incidents. He agreed that
    they engaged in the acts that the complainant described, but that it was always
    consensual. The appellant claimed that the allegations
were fabricated as part of a custody dispute.

[4]

After a six-day jury trial, the appellant was found not guilty on one
    charge of sexual assault, but guilty on all the other charges. He was sentenced
    to 4.5 years in custody, less pre-sentence credit of 78 days. He appeals his
    convictions.

Issues

[5]

The main issue the appellant advances is trial fairness. He argues that
    Crown counsel at trial (not Mr. Friesen) pursued improper lines of questioning
    during his testimony. The improper lines of questioning had to do with the
    complainants attractiveness and the appellants sex drive. He contends that
    the unfairness was compounded when the Crown, in his closing address, argued
    that the appellant was not a credible witness because of his evasive responses
    to the improper questions. The Crown also invited the jury to make improper use
    of the appellants demeanour on the stand, characterizing it as controlling.

[6]

Finally, the appellant argues that, when the trial judge charged the
    jury she misstated the complainants evidence, which had the effect of making her
    evidence appear both internally consistent, and consistent with her fathers testimony
    when it was not. He also argues that the trial judge misstated background evidence
    (
i.e.
, the toilet paper incident) that related to the charge of
    threatening

[7]

We are not persuaded by the appellants submissions on any of the
    grounds of appeal.

Crown Conduct and Trial Fairness

[8]

This Court has previously described the standard of review for assessing
    the trial fairness arguments advanced by the appellant. First, it will only be
    conduct that compromises trial fairness that will justify ordering a new trial,
    not merely improper conduct. Second, while not dispositive of the issue, the
    failure of defence counsel to object at trial is a relevant factor to consider.
    And finally, the reviewing court will look at the overall effect of the
    improper questions and conduct of the Crown in the context of the full
    cross-examination and the entire trial:
R. v. A.G.
, 2015 ONCA 159, at
    paras. 20-25.

[9]

As to the standard of review when assessing the Crowns closing
    submissions, the issue is,
whether the Crowns
    closing remarks, caused a substantial wrong or miscarriage of justice:
R.
    v. John
,
2016 ONCA 615
.
Again, this
    will be examined
in
the context of the
    entire trial and a new trial will only be ordered if the appellants right to a
    fair trial has been compromised: see
R. v. J.S.
, 2018 ONCA 39, at
    para. 38.

[10]

This
    court has repeatedly cautioned against improper cross-examinations and closing
    addresses by the Crown:
R. v. Henderson
(1999), 44 O.R. (3d) 628, at p.
    639; and
John
, at para. 77. More particularly, this court has identified
    the dangers associated with the cross-examinations of an accused person about
    the complainants attractiveness: see, for example,
R. v. F. (M.)
, 2009
    ONCA 617, at paras. 19-25; and
R. v. E. (F.E.)
, 2011 ONCA 783, at paras.
    68-69. Here, Crown counsel ignored these principles of law and pursued the
    otherwise irrelevant lines of questioning. In doing so the Crown came
    perilously close to causing this trial to be unfair.

[11]

Before
    pursuing these lines of questioning, Crown counsel ought to have first vetted
    them with the trial judge, in the absence of the jury: see
E. (F.E.)
, at
    para. 70. He failed to do so.

[12]

Moreover,
    we do not accept the Crowns submissions on appeal that the appellants
    perception of the complainants attractiveness, or his sex drive, were relevant
    to any issue at trial. In our view, both lines of inquiry were utterly
    irrelevant and carried with them the possibility of improper propensity
    reasoning by the jury. Indeed, Crown counsel at trial admitted as much in his
    closing address to the jury, acknowledging that these topics were really just
    fodder for undermining the appellants credibility.

[13]

Nevertheless,
    despite these transgressions, no serious prejudice was occasioned mainly
    because the appellant acknowledged the sexual acts alleged by the complainant,
    but he claimed that they were consensual. Thus, while some of the
    cross-examination of the appellant by Crown counsel was improper, as were the
    related passages in his address to the jury, looked at in the context of the
    entire trial, these transgressions do not rise to the level of compromising
    trial fairness.

[14]

With
    respect to the Crowns contention that the appellant was controlling, we are
    not persuaded that this amounts to the improper use of demeanour evidence. On
    our review of the record, Crown counsel was asking the jury to consider the
    appellants response to questions when he testified and to use this when
    assessing his credibility. Crown counsels remarks were really about the
    appellants evasive answers, not his presentation when giving them. This is not
    the same thing as demeanour. There was no
substantial wrong or miscarriage of justice
.

[15]

Finally,
    we observe that defence counsel did not object to the relevance or propriety of
    the questions posed by the Crown in cross-examination of the appellant: see
R.
    v. Middleton
, 2012 ONCA 523, at para. 58. Furthermore, neither defence
    counsel nor Crown counsel objected to the others closing address to the jury.
    Moreover, neither party sought any corrective instruction in the judges charge
    to the jury.

The Trial Judges Charge

[16]

The
    imperfections in the charge that the appellant urges upon us relate to factual
    matters (
i.e.
, the so-called toilet paper incident and the details
    surrounding the common assault charge that occurred at the home of the
    complainants parents). The trial judge clearly instructed the jury to make its
    own factual findings based on its collective view of the evidence. The jury is
    taken to have abided by these instructions. Accordingly, any minor imperfections
    in the trial judges account of the facts, such as there may have been, did not
    render the trial unfair.

[17]

For
    these reasons the appeal is dismissed.

H.S. LaForme J.A.

David Watt J.A.

Gary T. Trotter J.A.


