



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. A.C.Z., 2019 ONCA 69

DATE: 20190130

DOCKET: C63647

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.C.Z.

Appellant

John Rosen and Lindsay Daviau, for the appellant

Michael Perlin, for the respondent

Heard and released orally: January 28, 2019

On appeal from the conviction entered on February 16,
    2017, by Justice Tamarin Dunnet of the Superior Court of Justice.

ORAL ENDORSEMENT

[1]

A.C.Z. appeals his conviction, after a judge alone trial, on a single
    charge of sexual interference.  Central to his appeal is the appellants
    contention that the trial judge improperly curtailed his counsels
    cross-examination of the complainants mother.  The appellant also brings an
    application to admit fresh evidence relating to this issue.

[2]

The facts underlying the conviction arise out of the appellants alleged
    sexual abuse of his nine year old stepdaughter.  The complainant alleges that
    on a number of occasions, when the appellant was alone with her, he sexually
    abused her by touching her breasts and her vagina.  The complainant did not
    report this abuse at the time.  Rather, some years later, when she was a
    teenager, she revealed this abuse as a result of issues that arose regarding
    her performance at school.

[3]

At trial, the defence contended that the complainant had been encouraged
    by her mother to make false allegations against the appellant because of family
    law proceedings that were ongoing between the mother and the appellant.  One of
    the issues was whether the appellant was upset with the mother regarding her
    claims for child support.  During the cross-examination of the mother, the appellants
    counsel tried to put before the mother receipts that showed that the appellant
    had made numerous cash payments for child support.  Crown counsel objected to
    the line of questioning on the basis that the questioning was on a collateral
    matter.  The trial judge agreed and curtailed that line of questioning.

[4]

We agree, as does counsel for the respondent, that the collateral fact
    rule had no application to the issue raised:
R. v. A.C.
, 2018 ONCA
    333.  That does not change the fact that a trial judge has a wide discretion to
    control trial proceedings.  This includes controlling the scope of the
    questioning of witnesses whether in chief or in cross-examination.  While the
    right of cross-examination is to be jealously protected and broadly construed, it
    is not unlimited:
R. v. Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193, at
    paras. 44-45.

[5]

We see no unfairness that arose from the curtailment of the
    cross-examination.  We reach this conclusion for two main reasons.

[6]

First, as the trial judge recognized, the central issue fell to be
    determined on the evidence of the complainant.  The trial judge found the
    complainants evidence to be clear and compelling.  The issue that the
    appellant raises regarding the mothers evidence does not impact on that
    conclusion.

[7]

Second, the trial judge recognized that there were problems with the
    mothers evidence.  Again, however, the mothers evidence was largely
    peripheral to the central issue.  At most, her evidence provided corroboration
    for the complainants evidence that there were times when she was alone with
    the appellant such that the abuse could have occurred.  The trial judge was
    entitled to accept the mothers evidence as providing that corroboration while
    recognizing the other problems with the mothers evidence.

[8]

In terms of the fresh evidence, we would not admit it because, for the
    reasons we have already given, it fails to satisfy either the second or fourth
    factors from
R. v. Palmer
, [1980] 1 S.C.R. 759, that is, it does not
    bear upon a decisive or potentially decisive issue in the trial nor could it be
    expected to have affected the result.

Conclusion

[9]

The appeal is dismissed.

K. Feldman J.A.

P. Lauwers J.A.

I.V.B. Nordheimer J.A.


