



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), (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    the complainant or a witness shall not be published in any document or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, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 346 or 347,

(ii) an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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. M.,
    2015 ONCA 9

DATE: 20150112

DOCKET: C55884

Doherty, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. M.

Appellant

Tim Breen, for the appellant

Holly Loubert, for the respondent

Heard and released orally: January 7, 2015

On appeal from the conviction entered on June 6, 2012 and
    the sentence imposed on August 17, 2012 by Justice Jennifer A. Blishen of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant appeals his convictions of sexual assault, invitation to
    sexual touching and sexual exploitation in respect to each of the two complainants
    who were foster children in the appellants home. He also seeks leave to appeal
    the sentence of nine years imposed by the trial judge.

[2]

The appellant advances four grounds of appeal against conviction. He
    submits that the trial judge erred in law:


i.

in admitting as evidence of similar acts the testimony of each
    complainant on the counts relating to the other complainants;


ii.

in failing to adequately caution the jury about the significance of one
    complainants knowledge of the prior complaints and investigation in relation
    to the other complainants as a factor the jury should consider in assessing the
    reliability of that complainants evidence; and


iii.

in failing to adequately respond to a jury question that revealed an
    evidentiary misstatement in the trial judges charge to the jury.

The fourth ground, added in oral argument is that the
    trial judge erred in failing to enter
Kienapple
stays on two of three
    counts in relation to each complainant.

[3]

We would not give effect to any ground of appeal, save and except for
    that relating to the rule against multiple convictions.

[4]

In her ruling on the cross-counts admissibility of the evidence of each
    complainant, the trial judge revealed her appreciation of the improbability of
    coincidence as the core of the probative value of evidence of similar acts. The
    trial judge carefully assessed the probative value and the prejudicial effect
    of the evidence and concluded that the former predominated over the latter.

[5]

As trial counsel acknowledged, there was no evidence of actual
    collusion. The trial judge grounded her admissibility ruling on the
    similarities in specific, almost unique, details among the complainants
    accounts. Knowledge of the fact of prior allegations by one complainant did not
    include disclosure of these specifics. In these circumstances, we are satisfied
    that the trial judges admissibility ruling does not reflect error.

[6]

The trial judge recognized the need to caution the jury on the effect of
    tainting on their assessment of and reliance upon the evidence of one of the
    complainants. While her instructions to the jury on this issue could have been
    more extensive, we are satisfied that they were adequate in the circumstances
    of this case to bring home to the jury that they had to consider that
    complainants knowledge of the prior abuse complaints in assessing the value of
    her evidence. Given that the evidence went no further than that one complainant
    knew that other complainants had made complaints, there was little more that
    could have been said that would have assisted the appellant. In this respect we
    note, as well, that trial counsel did not object to this instruction.

[7]

In connection with the trial judges response to the jurys question, we
    are satisfied that the response was correct, albeit less direct than it might
    have been. No objection was taken by trial counsel for the appellant to the
    judges response to this question.

[8]

On sentence, we are satisfied that, when imposed, the sentence reflected
    no error in principle. The trial judge was aware of health concerns with
    respect to the appellant. The fresh evidence reveals that the appellants
    condition has unfortunately deteriorated significantly since sentence was passed.
    As sympathetic as we are to his deteriorating condition, we are not persuaded
    that this provides a stand-alone basis on which to interfere with what we
    regard as an otherwise fit sentence.

[9]

In the result, the appeal from the convictions entered at trial are dismissed
    except to the extent that stays are entered on the counts charging sexual
    assault in relation to each complainant.

[10]

Leave
    to appeal sentence is granted, but the appeal from sentence is also dismissed.

Doherty
    J.A.

Paul
    Rouleau J.A.

David Watt
    J.A.


