



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. J.L., 2019 ONCA 523

DATE: 20190624

DOCKET: C62800

Doherty, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.L.

Appellant (Applicant)

Keshav Agnihotri, for the appellant (applicant)

Candice Suter, for the respondent

Heard: June 10, 2019

On appeal from the conviction entered on November 25,
    2015 and the sentence imposed on April 29, 2016 by Justice R. Lococo of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant, J.L., was found guilty by a jury of one count of sexual
    assault and one count of touching a person under the age of 16 for a sexual
    purpose. The complainant, T.W., is the appellants stepdaughter. She was 13 at
    the time of the alleged assaults.

[2]

The trial judge imposed a sentence of four years on the sexual touching
    count and stayed the conviction on the sexual assault charge.

[3]

The appellant appeals conviction and sentence.

[4]

T.W. went to live with her mother and the appellant in 2011. Before
    that, she had lived with her biological father (K.K.). T.W. testified that the
    appellant regularly sexually assaulted her between January and June 2012. The
    assaults took place at night in her bedroom and involved digital penetration
    and oral sex.

[5]

The appellant testified and denied the allegations. He testified that
    T.W. had become a significant discipline problem by 2012 while she was living
    with the appellant and her mother. He had grounded her on occasion. T.W.s
    mother was, however, primarily responsible for disciplining T.W.

[6]

T.W. was taken into care by the Childrens Aid Society in July of 2012.
    The Childrens Aid Society had been involved with T.W. many times prior to
    2012. They became involved in July of 2012 as a result of an incident involving
    T.W.s friend, K.W.

[7]

T.W. had an argument with her mother and went to K.W.s home. While T.W.
    was at K.W.s home, T.W.s mother sent text messages to K.W. (who was 15-years
    old) inviting her to participate in a threesome with the complainants mother
    and the appellant. K.W. told her mother about the text messages and her mother
    went to the police and contacted the Childrens Aid Society. The Childrens Aid
    Society removed T.W. from the care of her mother and the appellant. T.W.s
    mother was later charged with invitation to sexual touching, contrary to s. 152
    of the
Criminal Code
. She eventually pled guilty to the charge.

[8]

In her testimony, T.W. said that she told her mother that the appellant
    was molesting her, but that her mother did not believe her. She also testified
    that the appellant repeatedly threatened her, telling her that if she told
    anyone he would tell the Childrens Aid Society that she had initiated the
    contact and the Childrens Aid Society would separate her from her siblings.

[9]

T.W. testified that she did not trust the Childrens Aid Society in
    2012. She refused at times to speak to child protection workers about alleged
    abuse in the home. On one occasion, at least, she denied that the abuse had
    occurred when in fact she had been abused. T.W. testified that she lied to the
    Childrens Aid Society workers and school counsellors because of the
    appellants threats that she would be taken from her siblings if the Childrens
    Aid Society became involved.

[10]

T.W.
    eventually complained to her new foster mother about the sexual abuse in August
    2013. She gave a statement to the police and the appellant was charged. T.W.
    indicated by this time she had been separated from her siblings and the
    Childrens Aid Society had commenced child protection proceedings. T.W.
    believed she had nothing left to lose. She was made a Crown ward in 2014.

[11]

The
    appellant advances four arguments in his factum. First, he makes submissions
    about the prejudicial effect of evidence led by the Crown concerning the
    conviction of T.W.s mother on the charge of invitation to touch for a sexual
    purpose. Second, the appellant argues that the trial judge made various errors
    in respect of the appellants pretrial motion for the production of documents
    in the possession of various third parties. Third, the appellant alleges errors
    in the charge to the jury. Fourth, the appellant submits that the sentence was
    demonstrably unfit.

[12]

Counsel
    did not make oral submissions in support of the third or fourth grounds of
    appeal outlined above. We see no merit in either and do not propose to address
    them any further in these reasons.

The Mothers Conviction for Invitation to Sexual Touching

[13]

The
    Crown sought to lead evidence in respect of the mothers attempt to solicit the
    involvement of K.W., T.W.s 15-year old friend, in sexual activity with T.W.s
    mother and the appellant. The attempted solicitation came via text messages.
    T.W. was with her friend when she received these messages.

[14]

The
    Crown argued that the evidence of the conviction and the events on which it was
    based was relevant to show the reason the Childrens Aid Society took T.W. out
    of the appellants home in July 2012. The Crown further argued that the
    evidence was relevant to demonstrate the nature of the relationship between
    T.W. and her mother. T.W. had said that she told her mother about the sexual
    abuse and that her mother did not believe her. The Crown contended that evidence
    of the mothers sexual misconduct toward T.W.s friend in the summer of 2012 provided
    an explanation for the mothers supposed disbelief of T.W. The Crown submitted
    that the evidence showed that T.W.s mother did not come to T.W.s support, not
    because she did not believe her daughter, but because she herself was
    interested in, and involved in, the sexual abuse of young girls.

[15]

The
    trial judge agreed with the Crowns position, holding that evidence of the
    dysfunctional relationship between T.W. and her mother could be important in
    assessing T.W.s credibility as it related to her description of the family
    dynamics and her mothers reaction to her allegations.

[16]

Although
    the trial judge admitted the evidence, he was alive to the potential prejudice
    to the appellant from the evidence. He addressed that prejudice by strictly
    limiting the evidence that the Crown could lead in respect of the mothers
    conduct and her subsequent conviction. The trial judge indicated that he wanted
    to limit the evidence to the extent possible to exclude indications of
    involvement [by the appellant].

[17]

Eventually,
    the Crown put the evidence of the mothers conviction on the invitation to
    sexual touching charge before the jury by reading to the jury from a document
    containing the allegation. The jury was also advised that T.W.s mother had
    pled guilty to that charge. The evidence of the surrounding circumstances,
    including the text messages, was not put before the jury.

[18]

Although
    counsel for the appellant had opposed the admissibility of the evidence for any
    purpose other than to explain why T.W. was taken into the care of the
    Childrens Aid Society, he did agree, after he had lost the admissibility
    argument, with the manner in which the evidence was put before the jury. Contrary
    to counsels submission in this court, there is nothing in the trial record to
    suggest that counsel did not have notice of the contents of the document read
    to the jury by Crown counsel.

[19]

The
    Crown read the following to the jury:

[The complainants mother] was charged that on or about the 3
rd
day of July, in the year 2012 in the City of St. Catharines, she did for a
    sexual purpose invite a person under the age of 16 years, namely [her
    daughters friend] to directly or indirectly touch with a part of her body the
    body of [the complainants mother] and/or [the appellant] to wit: to engage in
    a sexual encounter contrary to s. 152 of the
Criminal Code


[20]

A
    copy of the document Crown counsel had read to the jury was not made an
    exhibit. The trial judge, in his instructions, did not refer specifically to
    the document, but instead summarized its contents without reference to the
    appellants name.

[21]

In
    his instructions, the trial judge repeatedly advised the jury that the evidence
    of T.W.s mothers guilty plea and her conviction could not be used as evidence
    that the appellant had committed the offences. For example, the trial judge said:

However, since the Crown could not rely on the conduct
    involving [the complainants mother] and [the complainants friend] to
    establish any of the element of the charges against [the appellant] before the
    court, you must not use the agreed facts to help you conclude that the Crown
    has established any element of the offences charged or to help you to otherwise
    conclude that [the appellant] is guilty of the offences charged.

[22]

Counsel
    for the appellant submits, that despite the instructions, the jury could well
    have concluded from the reference to the appellant in the charge against the
    mother that the appellant was the kind of person who engaged, or wanted to
    engage, in sexual activity with young girls. Counsel argues that, if the jury drew
    that conclusion, convictions were inevitable.

[23]

The
    reference to the appellants name in the charge against the mother was probably
    unnecessary given the purpose for which the evidence was admitted. However,
    there was no objection by the defence to the format in which evidence of the
    charge and plea was put before the jury. Nor did the language of the document
    allege any misconduct by the appellant.

[24]

Having
    regard to the actual language of the document as it related to the appellant,
    the absence of any objection by the defence, but most significantly the
    powerful limiting instruction given by the trial judge, we conclude that the
    appellant was not prejudiced by the manner in which the mothers conviction was
    put before the jury.

[25]

Lastly,
    we would note that although it is not entirely clear whether the appellant
    objects on appeal to the admissibility of the evidence regardless of its form,
    we agree with the trial judges analysis as to the relevance of the evidence.
    It was properly admitted.

The Third Party Records Application

[26]

The
    appellant brought an application under s. 278.3 of the
Criminal Code
prior to trial for an order requiring production of records in the control of:

·

the District School Board of Niagara;

·

the Childrens Aid Society; and

·

Pathstone Mental Health.

[27]

The
    application described the records as pertaining to prior allegations of sexual
    abuse made by [the complainant] against the appellant and her biological father
    [K.K.]. The applicant sought an order releasing to the defence the documents in
    the possession of the above-named parties concerning enumerated instances of
    the complainants recanted allegations of sexual abuse at the hands of the
    accused and another adult significant other.

[28]

At
    the outset of his submissions in this court, counsel, relying on
R. v. T.C.
,
    [2004] O.J. No. 4077 and
R. v. Shearing
, [2002] 3 S.C.R. 33, argued
    that because the appellant had received copies of the Childrens Aid Society
    documents as part of the child protection proceedings, s. 278.3 of the
Criminal
    Code
, which governs the production of documents in the possession of third
    parties, had no application. Counsel submits that the appellant had the
    documents without any need for a production order. The appellant had undertaken
    to destroy the documents after the child protection proceedings were complete
    and to refrain from using the documents for any other purpose.

[29]

We
    accept, however, the respondents submission that the question of whether the
    appellant could have used any of the documents in his possession in the course
    of the trial did not arise in this trial. The appellant did not seek a ruling
    on whether he could use documents in his possession. Instead, the appellant chose
    to bring a third party records application, targeting, not only the Childrens
    Aid Society but other entities in possession of documents that he said were
    relevant to the trial. The motion having been brought, it was incumbent on the
    trial judge to rule on the motion in accordance with the provisions in the
Criminal
    Code
governing the production of documents from third parties. The fact
    that the appellant was in possession of copies of some of the documents does
    not render s. 278.3 any less applicable on a motion to compel production of
    documents held by third parties.

(i)

The Production for Inspection Order

[30]

Section
    278.3 applications proceed in two stages. At the first stage, the trial judge
    decides whether the third party record holder should produce any, some, or all
    of the requested documents to the trial judge for inspection by the trial
    judge:
Criminal Code
, s. 278.5. At the second stage of the application
    process, the trial judge decides whether any of the documents ordered produced
    should be provided to the defence:
Criminal Code
, s. 278.7.

[31]

The
    trial judge can order production of the record for her inspection only if
    satisfied that the record is likely relevant to an issue at trial and that
    the production is necessary in the interests of justice: s. 278.5(1). The
    interests of justice inquiry mandated by the section looks to the factors
    enumerated in s. 278.5(2). Those factors demand a consideration and balancing
    of important, but often competing interests. Clearly, when deciding whether to
    order production of the records, the trial judge is engaged in an exercise of
    discretion. This court will defer to that exercise of discretion unless the
    appellant demonstrates error in law, error in principle, or material
    misapprehension of the evidence.

[32]

After
    reviewing the evidence proffered on the application by the appellant, the
    submissions of third parties and the complainant, and the relevant legal
    principles, the trial judge ordered the Childrens Aid Society to produce for
    his examination records for the period beginning January 28, 2012 that
    pertained to T.W.s allegations of sexual misconduct by the appellant or to recantations
    of those allegations by T.W. The trial judge declined to order production of
    any of the other documents sought by the appellant.

[33]

We
    see no error in the exercise of his discretion. First, we accept his finding
    that insofar as the records held by Pathstone and the School Board were
    concerned, there was no evidence that those records contained anything which
    could assist the defence in respect of any issue at trial. It is not enough to
    establish likely relevance that the records may contain information about T.W.
    and her relationship with the appellant.

[34]

We
    also defer to the trial judges findings that the appellant had not met his
    onus to show that any records pertaining to T.W.s biological father and
    allegations she made against him were likely relevant to any issue at the
    appellants trial. As correctly observed by the trial judge, the only evidence
    of allegations against the biological father of sexual misconduct came from the
    applicant in his affidavit. Nor was there clear evidence that T.W. had ever
    made allegations that she was sexually assaulted by her biological father or
    that she had recanted any such allegation. It was open to the trial judge to
    conclude that the uncertain nature of the suggestions that T.W. had made
    allegations against her biological father and then recanted those allegations,
    combined with the fact that the supposed allegations concerned someone other
    than the appellant, combined to justify the finding that the documents were not
    likely relevant, or necessary to the making of full answer and defence by the
    appellant.

[35]

Finally,
    the trial judge rejected the basket clause component of the application,
    which sought production of any records tending to show that the complainant had
    a tendency to lie and blame others in order to avoid responsibility for her
    actions. Like the trial judge, we view this basis for a production claim as
    far too amorphous to justify the significant invasion of T.W.s privacy that
    would flow from the granting of the order.

(ii)

The Production to the Defence Order

[36]

At
    the second phase of the application, the trial judge, after reviewing the
    documents he had ordered the Childrens Aid Society to produce at the
    inspection phase, ordered copies of some of those documents, with redactions,
    be provided to the appellant.

[37]

Counsel
    for the appellant has not made any specific submissions challenging the ruling
    of the trial judge at the second stage of the production application. His submissions
    focused on the trial judges ruling at the first stage. We have not been convinced
    that the trial judge made any error in respect of the determination as to what
    part of the documents he had ordered produced should be passed on to accused.

[38]

We
    reject this ground of appeal.

[39]

As
    indicated at the end of oral argument, the appeal from conviction and sentence
    are dismissed.

Doherty J.A.

David Watt J.A.

G. Pardu J.A.


