



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. T.C., 2021 ONCA 595

DATE: 20210901

DOCKET: C67307

Paciocco, Nordheimer and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

T.C.

Appellant

William Gilmour, for the appellant

Katie Doherty, for the respondent

Heard: August 31, 2021 by videoconference

On appeal from the convictions entered on May 23, 2019 by
    Justice Gordon D. Lemon of the Superior Court of Justice sitting with a jury.

REASONS FOR DECISION

[1]

T.C. appeals his convictions for sexual exploitation, sexual assault,
    and sexual interference. At the conclusion of the hearing, we dismissed the
    appeal with reasons to follow. We now provide our reasons.

[2]

The appellant was accused of sexually abusing his stepdaughter over a
    period of three years from the time when the stepdaughter was 13 until she was
    16. It is alleged that the abuse occurred two to three times per week.

[3]

The appellant advances three grounds of appeal. First, he alleges that
    the trial judge erred in not allowing him to adduce evidence regarding a
    particular email that the stepdaughter had told her friends she had obtained
    from the appellants email account. The appellant wished to advance an argument
    that this email, along with some related messages, demonstrated the technical
    skill that the stepdaughter possessed that would have allowed her to fabricate certain
    earlier text messages that she had and that were placed into evidence.

[4]

The trial judge ruled that the emails were inadmissible. He noted that
    the emails were created some months after the appellants arrest and raised an
    issue that was collateral to the issues to be addressed in the trial. He also
    found that the emails were of little probative value. The trial judge
    consequently concluded that the emails were irrelevant and refused to allow them
    to be placed into evidence.

[5]

We do not see any error in the trial judges conclusion on this issue. We
    do not agree that the emails necessarily constituted a collateral matter since
    it is possible that the emails could have supported a suggestion of animus by
    the complainant. However, we would defer to the trial judges balancing of the
    probative value versus prejudicial effect of this evidence in respect of its
    admissibility. Lastly, we note that the refusal to admit these emails did not
    hamper the appellants ability to cross-examine the stepdaughter regarding the
    allegation that the much earlier text messages, that were put into evidence,
    had been fabricated by her.

[6]

The second ground of appeal is that the trial judge, in his instructions
    to the jury, improperly emphasized a particular piece of evidence, that is, a
    towel that was found by the police and that had the appellants DNA on it. We
    do not see any merit to this argument. The portion of the final instructions
    about which the appellant complains was part of the trial judges recitation of
    the Crowns position at trial. The trial judge simply repeated what the trial
    Crown had advanced as a submission regarding the relevance of the towel and
    what the jury should take from it. The trial judge did not advance this submission
    himself nor did he, in any way, suggest that he agreed with it. We also note
    that a draft of the final instructions, with this portion included, was
    provided to counsel and no objection was made to it.

[7]

The third ground of appeal is that the trial judge erred in his answer
    to a question that the jury asked regarding a test that the complainant said
    she had undergone that related to her allegations. The trial judge properly
    told the jury that there was no evidence regarding the results of this test and
    that they should not speculate regarding it. We also note that the trial
    judges response to the question was the same in content that defence counsel
    had asked for as a response to the question.

[8]

For these reasons, the appeal was dismissed.

David M. Paciocco
    J.A.

I.V.B. Nordheimer
    J.A.

S. Coroza J.A.


