



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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7),
    (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor in respect of a victim or a witness, or
    on application of a victim or a witness, a judge or justice may make an order
    directing that any information that could identify the victim or witness shall
    not be published in any document or broadcast or transmitted in any way if the
    judge or justice is of the opinion that the order is in the interest of the
    proper administration of justice.

(2)     On application of the prosecutor in respect
    of a justice system participant who is involved in proceedings in respect of an
    offence referred to in subsection (2.1), or on application of such a justice
    system participant, a judge or justice may make an order directing that any
    information that could identify the justice system participant shall not be
    published in any document or broadcast or transmitted in any way if the judge
    or justice is satisfied that the order is in the interest of the proper
    administration of justice.

(2.1) The offences for the purposes of subsection (2)
    are

(a) an offence under section 423.1, 467.11,
    467.111, 467.12, or 467.13, or a serious offence committed for the benefit of,
    at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2),
    17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
; or

(d) an offence under subsection 21(1) or section
    23 of the
Security of Information Act
that is committed in relation to
    an offence referred to in paragraph (c).

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary for
    the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer harm if
    their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) society’s interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or
    submissions made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.  2005, c. 32, s. 15; 2015, c. 13, s. 19

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. M., 2018 ONCA 361

DATE: 20180412

DOCKET: C61558

Feldman and Benotto JJ.A. and Sachs J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

J. M.

Appellant

Philip Campbell, for the appellant

Christine Tier, for the respondent

Heard and released orally: March 28, 2018

On appeal from the conviction entered on February 20,
    2015 and the sentence imposed on July 2, 2015 by Justice E.A. Quinlan of the
    Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was tried before a judge and jury on three counts arising
    from an altercation between himself and his wife, C.F.  The charges were
    aggravated assault, choking to overcome resistance and threatening death.  He
    was convicted of aggravated assault and, on the charge of choking, of the
    included offence of assault.  He was acquitted of the charge of threatening
    death.  This is an appeal from the two convictions.

[2]

The appellant alleges that the trial judge made two legal errors that
    led to an unfair trial.  Specifically, he submits that:

i)

the trial judge erred in instructing the jury that there was no evidence
    that the pot of spaghetti sauce responsible for C.F.s burning and scarring
    fell from the stove top rather than being poured over her by the appellant;

ii)

the trial judge erred in allowing Officer Henderson to testify in detail
    about the fact that the marks that he observed on C.F.s neck appeared to him
    to be fingerprints.

Ground One: Error respecting the falling pot

[3]

One of the incidents that formed the basis for the charge of aggravated
    assault was based on C.F.s testimony that the appellant poured a pot of hot
    spaghetti sauce over her, causing her to suffer several burns.  During the
    course of C.F.s testimony, the defence put several alternate scenarios to her,
    including that the pot of spaghetti sauce fell off the stove.  C.F.
    unequivocally denied those suggestions.  The appellant did not testify.

[4]

In her charge to the jury, the trial judge stated Ladies and Gentlemen,
    there is no evidence that the pot fell on [C.F.] and you must not speculate on
    this.

[5]

After several discussions between counsel as to how far defence counsel
    could go in terms of suggesting alternate scenarios to the jury, the trial
    judge was clear that the appellant was entitled to attack C.F.s credibility,
    including her credibility about how the spaghetti sauce ended up all over her. 
    According to the appellant, central to the appellants attack on C.F.s
    credibility was the ability to suggest to the jury that the photographic
    evidence of the spaghetti sauce splatter on the floor was circumstantial
    evidence from which they could draw the inference that the pot of spaghetti sauce
    fell on C.F., as opposed to being poured over her by the appellant.

[6]

While this was the position that the appellant took on the appeal before
    us, this was not the position that defence counsel took before the trial
    judge.  Significantly, when the Crown objected to the portion of defence
    counsels closing where she posed the question did the pot fall on her?,
    defence counsel said that she only meant to convey that the jury could reject
    C.F.s evidence.  Counsel apologized and agreed that there was no evidence of
    the pot falling.  She also agreed that a corrective instruction about
    speculation would be appropriate and advocated for a similar corrective
    instruction to address an area of the evidence where the Crown invited the jury
    to speculate.

[7]

We do not accept the suggestion that, in spite of trial counsels
    position, the trial judges charge on this point nevertheless undermined the
    fairness of the trial, given what the photographic evidence that was before the
    jury actually depicts.  On the defence theory, if the pot fell off the stove,
    this would have resulted in limited spaghetti sauce splatter close to the
    ground.  However, the photographs do not show only limited splatter close to
    the ground.  They also show splatter half way up the refrigerator door.

[8]

Therefore, we see no merit to this ground of appeal.

Ground Two: Officer Hendersons evidence on neck injuries

[9]

The appellant submits that Officer Hendersons evidence regarding the
    appearance of C.F.s neck injuries was inadmissible expert opinion evidence. 
    At the beginning of Officer Hendersons testimony, the Crown did try to elicit
    an opinion from him as to the cause of C.F.s neck injuries.  The defence
    objected and the trial judge agreed with defence counsel that such evidence was
    not admissible.  The trial judge then ruled that they would proceed question
    by question as to whether or not youre going too far, thus making it clear
    that she would entertain further objections on this point if the evidence
    strayed from proper bounds.  No further objection was taken to the evidence
    that the appellant now seeks to impugn.

[10]

The
    line between properly admissible descriptive evidence and inadmissible expert
    opinion evidence can sometimes be a difficult line to draw.  In this case,
    however, it is clear that in the view of the parties who were at the trial, the
    line was not crossed.  In
R. v. J.A.
[2011] 1 S.C.R. 628, the Supreme
    Court considered a case where it was submitted that an officers evidence
    concerning the appearance of an injury arguably exceeded the proper boundaries
    of lay opinion evidence and agreed that if the opinion stood unchallenged the
    error may have been of little consequence.  (paragraph 11)

[11]

In
    assessing the consequence of any error in this case, if there was one, it is
    important to note that the evidence was not treated as opinion evidence in the
    judges charge and that the evidence did not inflame the jury as they did not
    convict the appellant of choking, but just of simple assault.

[12]

For
    these reasons, the conviction appeal is dismissed.  The sentence appeal is
    dismissed as abandoned.

K.
    Feldman J.A.

M.L.
    Benotto J.A.

Sachs
    J. (ad hoc)


