



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Hamilton, 2017 ONCA 735

DATE: 20170921

DOCKET: C59121

Laskin, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jomo Kenyatta Hamilton

Appellant

Carol Cahill, for the appellant

Rochelle Direnfeld, for the respondent

Heard and released orally: September 15, 2017

On appeal from the conviction entered on June 26, 2013,
    and the sentence imposed on September 6, 2013, by Justice Gisele M. Miller of
    the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

Jomo Hamilton was convicted of sexual assault and sexual interference.
    The victim was the 13 year old daughter of Mr. Hamiltons friend. Over the
    course of a number of months, Mr. Hamilton engaged in multiple acts of anal
    intercourse with the victim, as well as one act of vaginal intercourse. The appellant
    appeals against conviction and sentence.

[2]

The main ground of appeal is that the trial judge erred in admitting
    into evidence a partial recording of a telephone call between the appellant and
    the victims mother. The appellant apologizes in the recorded part of the
    statement. He appears to be crying.

[3]

The appellant argues that there was insufficient context that would
    permit the jury to understand the meaning of the appellants words. Here, the
    trial judge was satisfied that the evidence of the victims mother could
    provide the requisite context to render the statement admissible. This was a
    finding that was available to the trial judge on the record. It was then for
    the jury to consider the mothers evidence in its entirety, and determine
    whether, if believed, it provided sufficient context to allow the partial
    recording to have any value.

[4]

We are not persuaded that the statement contained improper demeanour
    evidence. This was not a situation in which the mother gave her impressions of
    the appellants attitude, emotions or state of mind. Here, the mother described
    what she heard. Moreover, the appellant can be heard crying in the recording.

[5]

On appeal, Ms. Cahill argues that the trial judge should have instructed
    the jury to approach this evidence with caution. However, counsel at trial (not
    Ms. Cahill) did not request such a warning, and there was no subsequent
    objection. We can see no error in the trial judges charge.

[6]

Ms. Cahill makes similar submissions about the set of text messages that
    were entered into evidence. The argument is that the text messages were
    incomplete. It is argued that the trial judge ought to have told the jury to
    exercise caution because of the lack of context. Defence counsel made this
    argument before the jury, and this was repeated in the trial judges charge. We
    can find no error in the trial judges ruling to admit this evidence, nor any
    inadequacy in her instructions.

[7]

The appeal against conviction is dismissed. The appeal against sentence
    is dismissed as abandoned.

John
    Laskin J.A.

S.E.
    Pepall J.A.

G.T.
    Trotter J.A.


