



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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. S.J., 2017 ONCA 492

DATE: 20170614

DOCKET: C59590

Doherty, Lauwers and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.J.

Appellant

Diana M. Lumba and Marianne Salih, for the appellant

Lisa Joyal, for the respondent

Heard and released orally:  June 9, 2017

On appeal from the conviction entered on May 21, 2014 by
    Justice C. Herold of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault-related charges involving
    his daughter and stepdaughter.  He was acquitted on some of the charges
    involving his daughter.  There are four grounds of appeal.


I



Did the trial judge err in dismissing the severance motion?

[2]

The defence applied for severance at the outset of the case.  The trial
    judge dismissed the motion primarily because he was satisfied, based on the
    transcripts of the evidence at the preliminary inquiry, that the Crown had a
    viable argument for admissibility of evidence of the two complainants as
    similar fact evidence.  It was common ground that if the evidence was
    admissible as similar fact evidence, severance was not appropriate.

[3]

At the end of the Crowns case, the trial judge largely dismissed the
    Crowns similar fact evidence motion, although he did allow the motion as it
    related to the teaching comment.  The severance motion was not renewed.

[4]

There is no error in the trial judges severance ruling.  He properly
    considered the potential admissibility of the similar fact evidence in deciding
    whether to sever the counts.  The fact that the trial judge, after actually
    hearing all of the evidence and applying a very different standard of
    admissibility, determined that the similar fact evidence motion would be
    dismissed for the most part does not impact on the correctness of the severance
    ruling.

[5]

The trial judge applied the correct test in considering the severance
    motion.  He did not misapprehend any material evidence.  We cannot interfere
    with his exercise of discretion.


II



Did the trial judge err in allowing the jury to consider the
    teaching comment made by the appellant to both complainants as similar fact
    evidence, while excluding the evidence of the acts giving rise to that comment
    as similar fact evidence?

[6]

We see no error in the trial judges ruling.  The fact that both
    complainants testified that the appellant made the teaching comment, a remark
    which the jury could view as most unusual in the circumstances, was capable of
    supporting the credibility of the two complainants.

[7]

The trial judge correctly and repeatedly distinguished between the
    permissible use of the evidence of the teaching comment and the impermissible
    use of the related acts involving the individual complainants.  There was no
    objection to the charge.  We see no reason to hold that the jury could not
    understand or apply the distinction made by the trial judge.  We are satisfied
    that they could and did.


III



The alleged errors in the charge to the jury

[8]

In his factum, the appellant raises three objections to the charge to
    the jury.  In oral argument, counsel advanced one, although indicating that the
    appellant continued to rely on all three.  We are satisfied that the trial
    judge did not make any reversible error in his charge.  We will address only
    the argument on which counsel advanced oral submissions.

[9]

The defence argues that the trial judge should have expressly cautioned
    the jury against the risk of propensity reasoning based on the jurys
    assessment of the appellant as a bad person.  Propensity reasoning was
    certainly a risk in a case like this and the trial judge could have given the
    instruction now sought.

[10]

The trial judge approached the issue somewhat differently.  He
    repeatedly told the jury to consider the counts against each complainant
    separately and to not let any finding in respect of one complainant influence
    any finding in respect of the other.  In our view, this instruction effectively
    cautioned against propensity reasoning.  There was no objection to the charge. 
    It is also telling that the jury acquitted the appellant on counts relating to
    two of the incidents involving his daughter.  The different verdicts arrived at
    by the jury tell against any resort to propensity reasoning by the jury.


IV



The admissibility of the expert evidence tendered by the
    defence

[11]

The defence wanted to tender a report prepared by a psychologist in
    child protection proceedings involving one of the complainants.  We are
    satisfied that the trial judge properly excluded that evidence on the ground
    that it was irrelevant.

[12]

There was no evidence put before the trial judge that the
    characteristics of the complainant identified by the clinical psychologist in a
    report prepared in a very different context and for a different purpose could
    possibly assist the jury in assessing the complainants credibility as it
    concerned the evidence she gave at this trial.  We cannot accept counsels
    submission that trial counsel could simply as a matter of common sense
    explain to the jury how the characteristics identified by the expert could
    negatively impact on the complainants credibility.

[13]

As we agree with the trial judge that the proposed report was not
    relevant, and therefore inadmissible, we need not address the trial judges
    alternative ground for excluding the report.

[14]

The appeal is dismissed.

Doherty J.A.

P. Lauwers J.A.

D.M. Brown J.A.


