



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Kirlew, 2017 ONCA 171

DATE: 20170308

DOCKET: C59932

Cronk, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Kirlew

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Katherine Beaudoin, for the respondent

Heard: February 24, 2017

On appeal from the convictions entered on August 19, 2014
    and the sentence imposed on February 6, 2015 by Justice Alexander Sosna of the
    Superior Court of Justice, sitting with a jury.

By the Court:

Introduction

[1]

Following a trial by judge and jury, the appellant was convicted of the
    possession of child pornography (count one) and making child pornography
    available (count two).  The conviction on the first count was stayed in
    accordance with
R. v. Kienapple
, [1975] 1 S.C.R. 729.  The appellant
    was sentenced on the second count to 21 months in jail, plus three years
    probation.  Various ancillary orders were also imposed.

[2]

The appellant appeals from his conviction on count two, making child
    pornography available.  If his conviction appeal is successful, he seeks leave
    to make submissions on the appropriate sentence for his remaining conviction
    for possession of child pornography.  The appellant does not otherwise seek to
    appeal against his sentence.

Conviction Appeal

[3]

The appellant advances two grounds in support of his conviction appeal. 
    First, he argues that the trial judge erred by failing to adequately rectify in
    his jury instructions the trial Crowns violation, in his closing address to
    the jury, of the rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L.).

[4]

Specifically, the appellant says that the trial Crown violated the rule
    in
Browne v. Dunn
by suggesting to the jury, without the matter having
    first been raised in cross-examination, that the evidence of Adrian Walters, a
    computer technician who installed, updated and maintained file-sharing software
    on the appellants home computer, was unreliable because Mr. Walters did not
    have notes of his dealings with the appellant over the years.

[5]

Mr. Walters had testified that, based on his dealings with the
    appellant, he believed that the appellant had a limited understanding of
    computers.  He described the appellants knowledge of the use of computers as a
    five out of 10, said that the appellant had problems opening his e-mail, and
    maintained that the appellant did not know how to transfer data from his inbox
    and create other folders on his computer.

[6]

Mr. Walters evidence was important to the defence because the jury was
    required to determine whether the appellant knew, or was wilfully blind to the
    fact, that he was making child pornography available to others through the
    file-sharing software on his home computer.  The appellant testified at trial
    and claimed that he did not know that the pornography he admittedly downloaded
    on his computer was available for others to upload via the software on his
    computer.

[7]

We do not accept the appellants
Browne v. Dunn
complaint.

[8]

The rule in
Browne v. Dunn
requires that, in the interests of
    fairness, where a party intends to challenge the credibility of a witness, the
    party must provide the witness with an opportunity to address the point upon
    which the witness credibility is attacked.

[9]

However, this is neither a fixed nor inflexible rule.  As this court
    recently explained in
R. v. Quansah
, 2015 ONCA 237, 331 O.A.C. 304, at
    para. 80, the extent of the application of the rule lies within the sound
    discretion of the trial judge and depends on the circumstances of each case
    (citations omitted).  Further, and importantly, compliance with the rule
    requires that the cross-examination should confront the witness with matters
    of
substance
on which the party seeks to impeach the witness
    credibility and on which the witness has not had an opportunity of giving an
    explanation because there has been no suggestion whatever that the witness
    story is not accepted (emphasis in original, citations omitted).

[10]

In this case, the trial Crowns cross-examination of Mr. Walters made
    clear that the reliability of the witness memory and his professed
    recollections of his computer-related dealings with the appellant was directly
    in issue.  The trial Crown put to Mr. Walters, and Mr. Walters agreed, that his
    memory was faded; that he had made no notes of the software version that he had
    downloaded on the appellants computer; that he had no independent recollection
    of installing features of the file-sharing software on the appellants
    computer; and that, in his testimony, he was just going from memory.

[11]

Against this backdrop, the trial Crown suggested to the jury in his
    closing address that Mr. Walters had a poor and non-specific recollection of
    what functions he performed on the appellants computer, unassisted by any
    notes.

[12]

In our view, it is far from clear that
Browne v. Dunn
was even
    implicated in this case.  However, assuming that it was, we are satisfied,
    given the nature of the trial Crowns cross-examination, that this aspect of
    his closing argument did not offend the fairness considerations at which the
    rule in
Browne v. Dunn
is aimed.  Based on the cross-examination, we
    agree with the Crowns submission on appeal that it would have been clear to
    all parties and the jury that the trial Crown was attacking the reliability of
    Mr. Walters memory and recollections.

[13]

The trial judge disagreed.  Although the defence did not object to the
    trial Crowns closing address, the trial judge concluded that a correcting
    instruction to the jury was appropriate on the trial Crowns remarks concerning
    the reliability of Mr. Walters testimony.  In his instruction, the trial judge
    twice observed that Mr. Walters memory had not been tested on
    cross-examination.  With respect, as the appellants counsel candidly
    acknowledges before this court, this observation was incorrect.  That aside,
    the trial judges correcting instruction clearly undercut the trial Crowns
    position that Mr. Walters evidence was unreliable by informing the jury, in
    effect, that no proper foundation had been laid by the trial Crown upon which
    to advance that position.  In this respect, the instruction clearly favoured
    the defence.

[14]

In these circumstances, the appellants
Browne v. Dunn
argument
    fails.  As we have said, we are not persuaded that a violation of the rule in
Browne
    v. Dunn
requiring a correcting instruction occurred.  However, even if it
    did, the trial judges remedial instruction to the jury on the point adequately
    addressed any risk of prejudice to the defence.

[15]

The appellants second ground of appeal concerns the trial judges
    charge on
R. v. W.(D).
, [1991] 1 S.C.R. 742.  In his charge, the trial
    judge limited his
W.(D.)
instruction to the jurys consideration of
    the appellants evidence.  This instruction, the appellant says, runs afoul of
R.
    v. B.D.
, 2011 ONCA 51, 273 O.A.C. 241 and gives rise to the risk that the
    jury in this case may not have properly considered the burden of proof.

[16]

We reject this argument in the particular circumstances of this case.

[17]

In
R. v. B.D.
, at para. 114, this court held that the
    principles underlying
W.(D.)
are not confined to only those cases
    where an accused testifies and his or her evidence conflicts with that of Crown
    witnesses.  Rather, where, on a vital issue, there are credibility findings to
    be made between conflicting evidence called by the defence or arising out of
    evidence favourable to the defence in the Crowns case, the trial judge must
    relate the concept of reasonable doubt to those credibility findings.

[18]

The purpose of a
W.(D.)
instruction is to bring home to the
    jury that, in the face of conflicting evidence, the paramount question for
    their determination is whether, on the whole of the evidence, the jury is left
    with a reasonable doubt about the accuseds guilt:
R. v. C.L.Y.
, 2008
    SCC 2, [2008] 1 S.C.R. 5, at para. 6, citing
R. v. Morin
, [1988] 2
    S.C.R. 345, at para. 361.  For this reason, the analytical steps outlined in
W.(D.)
are intended to ensure that the jury remains focused on the principle of
    reasonable doubt:
C.L.Y.
, at para. 6.

[19]

The
W.(D.)
instruction in this case should not have been
    confined to only the appellants testimony.  By limiting his instruction in
    this respect, the trial judge erred.  That said, we are satisfied that the jury
    charge, read as a whole, was nonetheless adequate to achieve the purpose of a
    proper
W.(D.)
instruction, described above.

[20]

The issue in this case was the reliability of Mr. Walters memory and
    recollections and whether his evidence and the other evidence at trial gave
    rise to a reasonable doubt.  In his charge, the trial judge repeatedly told the
    jury that it was obliged to consider all the evidence before determining
    whether the appellant was guilty to the requisite criminal standard.  He also
    provided the jury with an otherwise standard
W.(D.)
instruction and
    standard instructions on the presumption of innocence, the Crowns burden to
    prove its case beyond a reasonable doubt, and the standard of proof beyond a
    reasonable doubt.

[21]

Further, in accordance with
W.(D.)
, the trial judge instructed
    the jury that:

Even if [the appellants] evidence does not leave you with a
    reasonable doubt about his guilt, or about an essential element of the
    [offence] charged,
you may convict him only if the rest of the evidence
    that you do accept proves his guilt beyond a reasonable doubt
.  [Emphasis
    added.]

[22]

When the charge is read in its entirety, we are not persuaded that the
    impugned sentences in the trial judges otherwise unobjectionable
W.(D.)
instruction tainted the whole of the charge.  In our opinion, based on all the
    trial judges instructions, this jury can have been under no misapprehension
    about its obligation to consider all the evidence in determining whether it
    raised a reasonable doubt about the appellants guilt.

Disposition

[23]

For these reasons, the conviction appeal is dismissed.  We therefore do
    not reach the appellants proposed appeal against sentence on his possession of
    child pornography conviction.

Released:

EAC                                                            E.A.
    Cronk J.A.

MAR -8 2017                                    Paul
    Rouleau J.A.

B.W.
    Miller J.A.


