



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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. Joseph, 2017 ONCA 661

DATE: 20170818

DOCKET: C57819

Doherty, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Joseph

Appellant

Matthew R. Gourlay, for the appellant

Rachel Young, for the respondent

Heard:  August 17, 2017

On appeal from the conviction entered by Justice Seppi of
    the Superior Court of Justice, sitting with a jury, dated February 20, 2013 and,
    if leave is granted, from the sentence imposed on May 16, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We disagree with the submission that
    the evidence of the prior conviction for sexual assault should have been
    excluded.  In our view, it was properly considered as part of the package of
    similar fact evidence that included the three incidents in 2011.  Viewed in
    that context, the evidence had significant potential probative value.  It is
    true that there was a prejudicial potential from the evidence (as there almost
    always is), however, the trial judge took steps to minimize the prejudice and
    repeatedly instructed the jury against the improper use of the evidence.

[2]

We also do not accept the submission
    that none of the similar fact evidence was admissible on the issue of consent
    and that the trial judge erred in instructing the jury that the evidence was
    admissible on consent.

[3]

The similar fact evidence offered
    support for the complainants version of how it was that she ended up in the
    hotel room with the appellant.  The potential probative value of the similar
    fact evidence lay in its ability to help the jury consider the competing versions
    of the relevant events.  The appellant said he was in the hotel room at the
    complainants invitation to have sex.  The complainant said she was there to
    pursue the job offer proffered by the appellant.

[4]

Because the similar fact evidence potentially
    supported the complainants version of how it was she went to the hotel room,
    it inevitably, in the circumstances of this case, rendered her evidence that
    the sexual activity in the hotel room was not consensual, more credible.

[5]

Counsel also takes exception to the
    adequacy of the charge.  In our view, the instruction was adequate.  The trial
    judge told the jury how it could use the evidence as it related to consent
    [paras. 77-79 of the charge].  She also identified the improper uses of the
    evidence.

[6]

The trial judge could have been more
    explicit about how the evidence related to consent.  She was not asked to do so
    by either counsel.  We cannot say she erred in not giving a more detailed
    instruction.

[7]

We see no basis upon which to interfere
    with the conviction on forcible confinement.  No objection was taken to the
    charge at trial.  In any event, the conviction had no impact on the sentence.

[8]

The appeal is dismissed.


