



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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., 2018 ONCA 648

DATE: 20180718

DOCKET: C59219

Benotto, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.J.

Appellant

R.J., self-represented

Lindsay Trevelyan duty counsel

Deborah Calderwood, for the respondent

Heard & released orally: July 11, 2018

On appeal from the conviction entered on April 12, 2011 and
    the sentence imposed on August 6, 2014 by Justice Cary Boswell of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault of
    his then 17 years old niece. He appeals his conviction on the basis that the
    trial judge erred by not providing a proper curative instruction to the jury in
    response to Crown counsels closing.

[2]

During her closing submissions, Crown counsel
    told the jury that the complainant was not asked how it was that her genitals
    had abrasions or how male DNA was on her body. Defence counsel raised this with
    the court during the pre-charge conference and asked for a curative instruction
    on the basis that I cant ask her that.

[3]

In his charge to the jury, the trial judge
    referred to the Crown closing and added:

Under our law, a
    complainant may not be asked questions about other sexual activity that she may
    have engaged in apart from the activity that forms the subject matter of the
    charge. In the result, [defence counsel] was prohibited from asking her such
    questions.

[4]

When discussing the burden of proof, the trial
    judge said this:

[The appellant]
    does not have any obligation to prove that the DNA found in the swabs taken
    from [her] body is not his. He has no obligation to explain away the DNA
    evidence. He has no obligation to prove anything in this case. At all times the
    onus remains on the Crown to prove the guilt of [the appellant] beyond a
    reasonable doubt. That onus never shifts.

[5]

In light of these instructions, we see no
    possibility for impermissible reasoning by the jury. Nor do we see any
    unfairness. A further admonition of the Crowns conduct by the judge was not
    necessary.

[6]

The appellant seeks an extension of time to seek
    leave to appeal his sentence. The sentence imposed was, in its entirety,
    pursuant to a joint submission and there is no basis before us to disturb the
    trial judges acceptance of that submission.

[7]

The appeal as to conviction is dismissed and
    leave to appeal sentence is denied.

[8]

We emphasize that there is and continues to be a
    publication ban in effect in this case.

M.L. Benotto J.A.

G.T.
    Trotter J.A.

David M. Paciocco
    J.A.


