



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. M.P.L., 2022 ONCA 70

DATE: 20220125

DOCKET: C68633

Fairburn
    A.C.J.O., Gillese and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.P.L.

Applicant
    (Appellant)

Phillip Dinis, for the appellant

Brett Cohen, for the respondent

Heard: January 24, 2022 by
    video conference

On appeal from
    the convictions entered on October 2, 2019 by Justice R. John Harper of the
    Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was found guilty of 10 offences for
    sexually abusing his former partners daughter who was 8 to 9 years old at the
    time. The abuse involved touching, oral sex, mutual masturbation, and attempted
    anal intercourse.

[2]

Pursuant to s. 715.1 of the
Criminal Code
,
    the victim adopted the contents of a video statement she gave to the police, in
    which she detailed the appellants escalating sexual behaviour towards her. The
    trial judge found the victim to be a very compelling and articulate witness;
    she displayed a verbal ability well beyond her years. Her evidence was not
    undermined in cross-examination; indeed, the trial judge found that, In many
    respects her evidence was enhanced.

[3]

The victims mother and grandmother testified
    about living arrangements at the house and the victims subsequent disclosure.
    The evidence painted a picture of hostility and violence in the household. The
    trial judge found that the victim lived in rational fear. Moreover, there was
    animosity between the appellant and the grandmother.

[4]

The appellant testified and denied all
    allegations. In the course of his evidence, he portrayed the victims
    grandmother as controlling and crazy, and the victims mother as a crazy person
    who had tried to kill him. After the victims disclosure, the appellant moved
    in with another woman. He shared his view about the victims mother and
    grandmother. This information made his new partner fearful, both for herself
    and for her own children. Yet, the appellant did not tell her that the victims
    grandmother lived across the street. In cross-examination, it was suggested to
    him that he was keeping it a secret. The appellant disagreed that it was a
    secret; he said it just never came up. Based on his new partners evidence, the
    trial judge found that the appellant spent many hours in the garage where, through
    a window, and undetected, he could see into the grandmothers living room, and
    could see the victim when she came for visits.

[5]

The trial judge gave detailed reasons for
    accepting the victims evidence and equally detailed reasons for rejecting the
    appellants evidence. He found that it did not raise a reasonable doubt.

[6]

The appellant submits that the trial judge erred
    in admitting irrelevant and prejudicial evidence relating to the appellants
    use of pornography on his cell phone. He also submits that the trial judge
    erred in admitting the evidence concerning the location of the grandmothers
    house and the time the appellant spent in his new partners garage. We do not
    accept these submissions.

[7]

The pornography evidence was relevant to a
    material issue. The victim testified that the appellant showed her pornographic
    images on his cellphone for the purpose of teaching her how to perform oral sex
    on him. Evidence concerning the appellants use of pornography in other
    contexts tended to support the victims evidence that the appellant accessed
    this content on his phone. There was no objection to the admission of this
    evidence. Moreover, the trial judge did not use this evidence for any
    prohibited propensity purpose.

[8]

Similarly, we see no error in the admission or
    use of the evidence concerning the appellants time spent in the garage. The
    trial judge restricted his use of this evidence to an assessment of the
    appellants credibility, focusing on the fact that, after telling his new
    partner about the hostility that the victims mother and grandmother harboured
    for him, he did not tell his new partner that the grandmother lived across the
    street. The trial judge inferred that the appellant kept this to himself so
    that he could continue to watch the victim when she visited her grandmother
    across the street.

[9]

The appellant further submits that the trial was
    unfair because the Crown was permitted to cross-examine three of its own
    witnesses without first establishing the threshold requirements in s. 9(2) of
    the
Canada Evidence Act
. He submits that this was achieved through the
    guise of attempting to refresh the memories of these witnesses by having them
    review their police statements.

[10]

We do not accept this submission. Although the
    procedure for having the witnesses refresh their memories might have been
    somewhat relaxed, there was no objection from defence counsel at trial. In the
    circumstances, it was appropriate that these witnesses be given the opportunity
    to review their statements. Contrary to the appellants submissions, cross-examination
    did not follow; instead, proper examinations-in-chief continued. In any event,
    nothing prejudicial or inadmissible was elicited.

[11]

The appeal is dismissed.

Fairburn
    A.C.J.O.

E.E.
    Gillese J.A.

Gary
    Trotter J.A.


