



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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.J. R.-M., 2021 ONCA 454

DATE: 20210624

DOCKET: C65626

Watt, Benotto and Harvison Young
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.J. R.-M.

Appellant

Scott Reid, for the appellant

Jeremy D. Tatum, for the respondent

Heard: May 19, 2021 by video
    conference

On appeal from the conviction entered on
    January 31, 2018 and the sentence imposed on March 1, 2018 by Justice Meredith Donohue
    of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant appeals his conviction before a judge and jury on counts
    of sexual interference and sexual assault of his stepdaughter. He says that the
    trial judge made the following reversible errors:

a.

She erred in
    ruling that certain post-incident evidence should be admitted;

b.

She erred in
    failing to instruct the jury to disregard an improper aspect of the Crowns closing
    which suggested that the complainants behavioural issues were related to the
    sexual abuse by the appellant;

c.

She erred in
    refusing to exclude photographs of the defendant and the complainant taken in
    her bedroom on grounds that it violated s. 8 of the
Canadian
Charter of Rights and Freedoms
.

[2]

There is no merit to any of these grounds for the following reasons.

The Post-Incident Conduct

[3]

The appellants adult daughter was a witness at the trial. She testified
    that during a visit with the appellant while he was in custody after being
    charged, the appellant had asked her to destroy a black bag containing the
    complainants clothing which he had left in an outbuilding near the familys
    home. The Crown brought a pre-trial motion asking that this evidence be
    admitted as it was after-the-fact conduct relevant to an issue at trial.

[4]

There was no dispute as to the relevance of the evidence to the
    allegations. It was anticipated that there would be evidence led that the
    appellant had bought his stepdaughter see-through clothing that he asked her to
    wear with nothing on underneath while her mother was absent. The heart of the
    appellants submissions on appeal is that the trial judge erred in failing to
    weigh the probative value of this evidence against its prejudicial effect. He
    argues that the prejudicial effect was high because, in his view, a jury would
    be likely to assume that the daughter was telling the truth unless there was
    evidence of motivation on her part to lie. While the appellants counsel was of
    the view that there was such motivation, this was evidence that was bad
    character evidence, including evidence that the appellant physically abused his
    children, that he had abducted them and spirited them out of their home country
    illegally, and that he had reacted very negatively when his daughter came out
    to him. This reality put the appellant in an untenable position because he
    was faced with the choice of addressing the daughters evidence on its own
    terms, or introducing bad character evidence.

[5]

We do not agree. As the appellant conceded, the evidence was highly
    probative in the circumstances. In her ruling allowing the Crowns application,
    the trial judge correctly instructed herself on the applicable principles of
    the law, and there is no suggestion that her instructions to the jury erred
    with respect to the treatment of post-incident conduct. The appellant
    cross-examined the witness extensively on her motivation to lie due to her
    fathers reaction to her coming out, and to her report of having been sexually
    assaulted on one occasion. In addition, the appellant and the appellants wife
    were both rigorously cross-examined on discrepancies between their respective
    testimonies as to where the black bag was found.

[6]

In short, we see no error. As the trial judge correctly held, it was up
    to the jury to decide whether the appellant had asked his daughter to find and
    destroy the bag. The material question was whether the appellant had made this
    request. The defence made strategic decisions as to what factors it brought out
    that could constitute motives to lie on the daughters part and rigorously
    cross-examined her on them. There was no basis for excluding this evidence as
    submitted by the appellant.

The Crowns Closing Submission

[7]

The appellant takes issue with the Crowns comment in its closing to the
    jury that the complainants behaviour after the summer during which the alleged
    incidents took place made sense because it was more in keeping with that
    summer she had after being sexually assaulted.

[8]

The appellant claims that this statement was entirely speculative,
    prejudicial, and rendered the trial unfair. We disagree. First of all, we note
    that the defence closing also contained statements that arguably invited
    speculation in the other direction. More importantly, there was no objection
    from Mr. Reid, who was also the trial counsel. This is particularly striking given
    that following the charge to the jury, counsel asked for, and the trial judge
    made, some clarifying instruction to the jury. He did not raise the issue of
    the closing. Closing submissions are to be given significant latitude, and the
    trial judges charge was balanced in that it included a fair summary of both
    sides positions.

The s. 8 Argument

[9]

Finally, the appellant submitted in his factum that the trial judge
    erred in ruling that the circumstances of the delivery of certain photos to the
    police did not violate his s. 8 rights. The photos had been inadvertently found
    by the appellants daughter on her (disabled) sisters tablet, and the daughter
    who found them downloaded them so they could be provided to the police. The
    trial judge made her finding on the basis that that the daughter who provided
    the photos to the police was acting as an independent actor and not as a state
    agent, and that those actions were not subject to s. 8 scrutiny. We see no
    error in this conclusion and no merit in this ground of appeal.

[10]

The
    appeal is dismissed.

David Watt J.A.

M.L. Benotto J.A.

A. Harvison Young J.A.


