



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    the complainant or a witness shall not be published in any document or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, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 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; 2005, c. 43, s. 8(3)(b).

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. Mayers, 2014 ONCA 474

DATE: 20140617

DOCKET: C53248 & C50046

Doherty, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ron Junior Mayers

Appellant

Daniel Santoro and Joshua Tong, for the appellant

Karen Papadopoulos, for the respondent

Heard and released orally:  June 5, 2014

On appeal from the conviction entered on May 3, 2006 by
    Justice Molloy of the Superior Court of Justice and the sentence imposed on
    July 16, 2008.

ENDORSEMENT

[1]

The appellant appeals his convictions and also appeals the indeterminate
    sentence imposed upon the finding that the appellant was a dangerous offender. 
    There are two grounds of appeal on the conviction appeal.

The
Corbett
Ruling

[2]

The appellant has an extensive criminal record.  At trial, he sought to
    have most of that record redacted for the purpose of cross-examination.  On
    appeal, counsel focuses on two convictions for sexual assault that were entered
    about three or four years before the appellants trial.

[3]

The trial judge has a recognized discretion to edit an accuseds
    criminal record for the purpose of cross-examination.  This court must defer to
    a trial judges decision in this regard absent error in principle, a
    misapprehension of material facts, or an exercise of the discretion which, in
    the totality of the circumstances, must be regarded as unreasonable.

[4]

In this case, the trial judge, motivated primarily by the forceful attack
    on the complainants credibility and character, concluded that the convictions
    for sexual assault should not be edited, but should instead by the subject of a
    strong limiting instruction.

[5]

R. v. Corbett
, [1988] 1 S.C.R. 670, the guiding authority, instructs,
    at paras. 35 and 50, that trial judges should begin from the premise that
    juries should receive all relevant information accompanied, where necessary, by
    a proper and clear limiting instructions.
Corbett
further instructs
    that the discretion to keep information about an accuseds criminal record from
    the jury should not be exercised absent clear grounds in policy or law for
    doing so.

[6]

Bearing in mind the approach dictated by
Corbett
and giving the
    trial judges ruling the appropriate deference, we cannot say that she erred in
    exercising her discretion against editing the appellants criminal record by
    removing the convictions for sexual assault.  This ground of appeal cannot
    succeed.

The Ruling on the Collateral Fact Issue

[7]

Assuming without deciding that the proposed evidence of the by-law
    enforcement officer was, contrary to the trial judges ruling, admissible for
    the defence, we are satisfied that the exclusion of that evidence caused no
    substantial wrong or miscarriage of justice.  The evidence was offered to show
    that the complainant was operating a massage parlour in which she also engaged
    in sexual activity for money.  The complainant had denied that she did so. 
    Arguably, a finding that she engaged in such conduct would offer some support
    for the appellants story.

[8]

There was other evidence before the jury that both clearly established
    that the complainant was operating a massage parlour and supported the
    inference that sexual activity may well have been an extra offered for
    additional payment.  The evidence which the trial judge excluded was evidence
    of a single event five months earlier involving a very different kind of sexual
    activity than the appellant testified he anticipated.  Any potential probative
    value that evidence had for the appellant paled beside the evidence that was
    already before the jury.

[9]

Furthermore, we regard this as an overwhelming case for the Crown.  The
    forensic evidence, particularly the evidence of the discovery of the knife and
    the Kleenex with the appellants DNA in a field outside of the complainants
    business premise, provided powerful evidence supporting the Crowns case.  It
    also rendered the explanation offered by the appellant entirely incredible.  In
    our view, had the evidence tendered by the defence been admitted, there was no reasonable
    possibility given the other evidence in this case that the verdict could have
    been any different.

[10]

The
    conviction appeal is dismissed.

The Sentence Appeal

[11]

The
    trial judge found that the appellant met the criteria for a dangerous
    offender.  No one takes issue with that finding.  She went on to conclude that
    an indeterminate sentence was the appropriate sentence in all of the
    circumstances.  Counsel for the appellant does not take issue with her reasons
    in that regard, but argues that the proceeding was inherently unfair because
    the trial judge did not take into account the appellants alleged disability
    which, according to the submissions we heard, rendered it very difficult for
    the appellant to verbalize his feelings and intentions.  As we understand it,
    counsel for the appellant argues that the trial judge could not get a full and
    accurate picture of the appellants potential for treatment absent some
    alternative approach to the appellants assessment which would counter his inability
    to verbally express himself.  Counsel submits that the appellant demonstrated
    an ability to set out his state of mind and his intentions with respect to
    future treatment in writing and that the trial judge should have explored this
    mode of communication more fully.

[12]

In
    our view, the trial judge was careful to afford the appellant every opportunity
    to put his position forward.  There is nothing more that the trial judge could
    have done that would have offered any further insight into the appellants
    condition and, particularly, the ongoing risk that he posed to the public.  We
    cannot agree that there was any unfairness in the manner in which the dangerous
    offender proceeding was conducted.  To the contrary, we think the trial judge
    was very alive to the need to treat the appellant fairly and to explore all
    avenues before imposing an indeterminate sentence.

[13]

The
    sentence appeal is dismissed.

Doherty J.A.

M. Tulloch J.A.

M.L. Benotto J.A.


