



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Boodram, 2020 ONCA 618

DATE: 20201002

DOCKET:
    C65205

Simmons, Watt and Roberts JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Burton
    Boodram

Appellant

R. Craig
    Bottomley and Andrea VanderHeyden, for the appellant

Sean
    Horgan, for the respondent

Heard: September
    28, 2020 by video conference

On appeal
    from the convictions entered on January 11, 2018 by Justice G. Paul Renwick of
    the Ontario Court of Justice.

REASONS FOR
    DECISION

[1]

After hearing this appeal, we endorsed the
    Appeal Book: For reasons to follow, the appeal is dismissed. These are our
    reasons.

[2]

Following a judge alone trial, the appellant was
    found guilty of accessing, possessing and attempting to distribute child
    pornography and obstructing police. The accessing charge was stayed pursuant to
Kienapple
.
[1]
Convictions were entered for the other charges. The appellant appeals from his
    convictions and raises two issues on appeal.

[3]

First, the appellant argues that the trial judge
    engaged in prohibited reasoning by relying on evidence of other discreditable
    conduct to find the appellant guilty. The appellant points out that the Crown
    failed to bring a similar fact application and that the trial judge gave
    himself only a single-sentence boiler plate instruction against propensity
    reasoning. Moreover, the appellant submits that in his reasons, the trial judge
    expressly relied on the other discreditable conduct evidence as circumstantial
    evidence that assisted him in finding that the appellant downloaded the child
    pornography onto the two cell phones found in the appellants possession.

[4]

We do not accept this submission. No issues were
    raised concerning the admissibility or use of the impugned evidence at trial. In
    his reasons, the trial judge identified the issue to which the evidence was
    relevant and concluded that it was sufficiently probative of that issue to
    warrant his reliance on it.

[5]

The appellant testified it was someone else (his
    friend, Chris  surname and location unknown) who downloaded child pornography
    onto the cell phones found in the appellants possession. In that context, the
    trial judge concluded the evidence of the appellant's fantasizing about having
    sexual relations with a child and role playing with a friend about having a
    threesome with a child was relevant and probative on the issue of identity. The
    trial judge concluded that that evidence and the evidence of use of child
    pornography in on-line discussions with his friend were such unique events
    that they assist me to find that [the appellant] used the two cell phones found
    near his bed to search for and obtain child pornography in order to stimulate
    and satisfy his professed sexual interest in children.

[6]

We see no error in this conclusion. The trial
    judge cautioned himself appropriately against impermissible propensity or bad
    character reasoning. The evidence in question satisfied the
Handy
[2]
criteria for admissibility. It
    was relevant to a specific issue at trial (identity) and its probative value in
    relation to that issue outweighed any potential prejudice.

[7]

Second, the appellant argues that the trial
    judge erred in relying on his observations of the appellant's hand movements
    while testifying in determining that the appellant was capable of operating a
    cell phone. The appellant submits that in doing so, the trial judge effectively
    disregarded the expert evidence adduced by the appellant at trial and rendered
    the trial unfair by failing to give the defence an opportunity to make
    submissions regarding the observations.

[8]

We do not accept this argument. The question of
    the appellant's ability to operate a cell phone because of a physical
    disability was a live issue at the trial. The expert on whom the appellant
    relied had not tested the appellant's practical physical functioning or ability
    to adapt over time so that he could perform routine tasks. Crown witnesses
    testified that the appellant could operate a cell phone. While testifying, the
    appellant expressly invited the trial judge to observe his hands and his
    ability to move his hands. Having done so, it is not now open to the appellant
    to complain about the trial judge's observations made while he (the appellant)
    was in the witness box.

[9]

The appeal is dismissed.

Janet
    Simmons J.A.

David
    Watt J.A.

L.B.
    Roberts J.A.





[1]

Kienapple v. R.
, [1975] 1 S.C.R. 729.



[2]

R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908.


