



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    that could identify the victim or a witness shall not be published in any document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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. R.J., 2016 ONCA 750

DATE: 20161017

DOCKET: C60498

Doherty, Hourigan, and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.J.

Appellant

Cate Martell, for the Appellant

Brock Jones, for the Respondent

Heard: October 5, 2016

On appeal from the conviction entered on September 1, 2014 and
    the sentence imposed on December 9, 2014 by Justice Johanne N. Morissette of
    the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant appeals
    his conviction following a trial by jury on one count of sexual interference
    against his stepdaughter when she was between the ages of 6 and 12. The
    complainant was 19 years old at trial.

[2]

The appellants main
    ground of appeal is trial unfairness. Specifically, the appellant submits that
    the breach by Crown counsel at trial (not Crown counsel on appeal) of their
    agreement not to cross-examine the appellant on his post-arrest conduct
    resulted in a miscarriage of justice.

[3]

The parties had agreed
    that unless the appellant raised the issues himself, Crown counsel would not
    cross-examine the appellant about his departure and six-month absence from the
    jurisdiction after he was arrested and charged, his failure to attend his first
    preliminary inquiry, and his subsequent guilty plea, conviction and 30-day
    intermittent sentence for failing to attend.

[4]

The appellant made no
    mention of these matters during his examination in chief. It was only in
    response to Crown counsels question during his cross-examination: And did you
    want to clear these charges up as soon as possible?, that the appellant
    stated:  No.  I left the jurisdiction, but I came all the way across Canada
    and turned myself in to the London Police Station on my own accord.

[5]

Crown counsel asked
    that the jury retire and sought a ruling that he be permitted to ask the
    appellant about his departure, absence from the jurisdiction, and subsequent
    guilty plea and sentence.

[6]

In response, defence
    counsel vigorously objected to the appropriateness of Crown counsels question
    and to his request that he be permitted to ask further questions about these
    issues.

[7]

The trial judge
    concluded that because the appellant could have answered the Crowns question
    with Yes, I wanted to but instead said, No, he had put these matters into
    issue. As a result, she ruled that Crown counsel could flesh out why he was
    charged and convicted, and arrested.

[8]

Crown counsel then
    proceeded to cross-examine the appellant about his failure to attend his first
    preliminary hearing court date, turning himself into the police station six
    months later, being charged with the criminal offence of failing to attend
    court, his conviction and 30-day intermittent sentence. The appellant explained
    that he left the jurisdiction because he was frightened and needed to clear his
    head but that he returned to take responsibility for not attending the first
    preliminary inquiry. On re-examination, the appellant explained that he pled
    guilty because he had come back and wanted to prove that he was innocent to the
    two young sons whom he wanted to keep seeing.

[9]

In his closing, after
    pointing out that the complainant and the appellant gave diametrically opposed
    versions of the relevant events, Crown counsel said:

My friend stated, in his argument, in his
    closing argument that Mr. J. is innocent, he was honest and had nothing to
    hide. Well, he hid himself for six months.  R.J.s version of what happened
    simply makes no sense at all. The entirety of the evidence that you heard over
    the past week can only lead to guilty beyond a reasonable doubt.

[10]

The trial judge
    instructed the jury that the appellants explanation for his leaving the
    jurisdiction was plausible and that it would be wrong in law for the jury to
    rely solely on the appellants post-arrest conduct to find him guilty of the
    charged offence. However, she gave no caution to the jury about using the
    post-arrest conduct to assess the appellants credibility.

[11]

On September 5, 2014,
    the jury found the appellant guilty of sexual interference. On December 9,
    2014, he was sentenced to imprisonment for three years, less 144 days of
    pre-sentence custody.

[12]

We agree that Crown
    counsels question opened the door to the appellants response concerning his
    post-arrest conduct and resulted in unfairness to the appellant.

[13]

Crown counsel asked a question
    that arguably invited a one-word answer, either yes or no. Witnesses,
    however, often do not provide the anticipated answer. Crown counsel should reasonably
    have foreseen the possibility that the question would lead the appellant into
    evidence about his post-arrest conduct.  Crown counsel should not have asked
    the question in front of the jury without first vetting the question with the
    trial judge and giving counsel for the defence an opportunity to raise the
    propriety of the question.

[14]

It was at least reasonably
    foreseeable that the question posed by Crown counsel would lead into the areas
    that counsel had agreed would not be the subject of evidence unless first
    raised by the appellant. Crown counsels question was ill-advised and generated
    evidence that should not have been before the jury given the agreement between
    counsel.

[15]

The effect of the
    introduction of the appellants post-arrest conduct was not minor. It affected
    the jurys assessment of the appellants credibility and prejudiced the appellant
    in his defence.

[16]

The appellant submits
    that if he had known that his conviction would be introduced at trial, he may
    very well have presented his evidence and conducted his defence in a different
    way. To the appellants detriment, the breach occurred at the end of his
    cross-examination and took the appellant completely by surprise.

[17]

More significant,
    however, was the risk of prejudice caused by Crown counsel inviting the jury in
    his closing to use the evidence of the appellants post-arrest conduct to
    negatively assess the appellants credibility, and the absence of any jury
    instruction not to use this evidence for that purpose.

[18]

This was a case that
    turned entirely on the credibility of the complainant and the appellant. As
    Crown counsel fairly acknowledged, this was not an overwhelming case for the
    Crown. A reasonable jury could have gone either way.
There is a real risk that the jury could have resorted
    to the appellants post-arrest conduct in resolving the very difficult
    credibility issue that it had to decide in arriving at a verdict.

[19]

In the end, the jury
    heard evidence that it should not have heard that may well have had a negative
    impact on the appellants credibility. In a case turning entirely on
    credibility assessment, the appellant has demonstrated the requisite prejudice
    resulting in a miscarriage of justice.

[20]

For these reasons, we
    allow the appeal and order a new trial.

Doherty J.A.

C.W. Hourigan J.A.

L.B. Roberts J.A.


