



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. D.H., 2017 ONCA 258

DATE: 20170329

DOCKET: C61212

Doherty, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.H.

Appellant

Najma Jamaldin, for the appellant

Philippe Cowle, for the respondent

Heard: March 21, 2017

On appeal from the conviction entered on April 14, 2015
    and the sentence imposed on July 9, 2015 by Justice Edward M. Morgan of the
    Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of multiple sexual offences against his son,
    who six years old at the time of the offences. The appellant was sentenced to
    five years imprisonment with ancillary prohibition orders. He appeals against
    conviction and seeks an extension of time to apply for leave to appeal aspects
    of the sentence.

[2]

For the reasons set out below, the appeal against conviction is dismissed.
    With respect to the sentence appeal, the extension of time, the leave to appeal
    sentence, and the appeal of sentence are granted, but limited to the extent of
    the Crowns concession, as explained below.

A.

Conviction appeal

[3]

Although the appellant raised several issues on appeal, only two alleged
    errors were strenuously pursued in oral argument: (1) the trial judges failure
    to find that the complainants evidence was tainted by collusion; and (2) the
    trial judges admission, as similar fact evidence, of the appellants criminal
    record for the sexual assault of an 8 year old girl.

Collusion

[4]

The argument from collusion was characterized by counsel for the
    appellant as the heart of the appeal. The factual background is this: the
    appellant had an unstable relationship with the complainants mother for the
    first three years of the complainants life. The appellant and the
    complainants mother had an acrimonious separation, and the complainant visited
    his father every second weekend.

[5]

The appellant argues, effectively, that the complainants mother
    influenced the complainants evidence by speaking negatively about him and, specifically,
    by continually questioning the complainant, and having public authorities question
    the complainant, about whether the appellant had ever sexually abused him. The
    backstory to this questioning is that when the complainant was 11 years old,
    the appellant pleaded guilty to the sexual assault of an eight-year-old girl, K.I.,
    the daughter of the appellants girlfriend at the time.

[6]

Later, when the complainant was 15 years old and the appellant had been
    out of his life and his mothers life for several years, he spontaneously disclosed
    the sexual abuse in notes and drawings that he gave to his foster father. In
    those writings he also mentioned the appellants abuse of K.I.

[7]

The appellant argues that the complainants description of events was influenced
    by his mother in several different ways: First, through exposure to his
    mothers ill-will towards the appellant fueled by years of acrimonious family
    litigation; second, through repeated questioning of the complainant; third, by his
    mother informing him about the appellants abuse of K.I.  Additionally, the
    appellant argues that the complainant may have had opportunity to speak with
    K.I. directly, and may have colluded with her.

[8]

The trial judge found, however, that mere opportunity is insufficient
    and that there was no evidence that the complainant spoke with K.I. about the
    incidents involving her. The trial judge further found that the other instances
    of possible collusion raised by the appellant were in the realm of conjecture.

[9]

We agree.

[10]

The appellant further argues, however, that the absence of evidence of
    collusion is the fault of the Crown in not calling the complainants mother as
    a witness at the
voir dire
. The appellant argues that the evidence at
    the
voir dire
met the necessary evidential threshold requiring the
    Crown to call the mother to give evidence. The Crown did not do so, with the
    result, the appellant argues, that the defence was deprived of her evidence,
    particularly of what she told the complainant about the incidents involving
    K.I.

[11]

We do not agree that the trial judge made any error in finding that there
    was no evidence of collusion between the complainant and his mother that would satisfy
    the threshold requirement. The mere fact of questioning of the complainant was
    not sufficient, and there was no evidence that anyone discussed the details of
    the offences against K.I. with the complainant.  Significantly, the
    complainants evidence about what he witnessed of the appellant and K.I., in
    fact, was different than what the complainant would have known if he had relied
    on accounts of the appellants prior conviction. This ground of appeal fails.

Similar fact evidence

[12]

As to the second ground of appeal, the trial judge made no error in
    admitting the similar fact evidence. He adverted to the correct legal
    principles and found relevant similarities between the prior offences (to which
    the appellant had plead guilty) and the offences against the complainant. Both
    sets of offences were characterized as opportunistic, secretive encounters. In
    both cases, the appellant exploited the vulnerability of pre-pubescent children
    under his care. The children were similar in age and in both cases there was a
    similar pattern of escalation. In both cases, the exploitation occurred
    suddenly, without grooming, recurred over a few weeks, and then suddenly
    stopped.

B.

Sentence appeal

[13]

The appellant seeks an extension of time to apply for leave to appeal
    various provisions of an ancillary prohibition order. The Crown concedes that one
    part of the prohibition order  the prohibition on communicating with persons
    under the age of 16 (paragraph (d) of the prohibition order)  is
    unconstitutional for retroactive application, following the recent decision of
    the Supreme Court in
R. v. K.R.J.
, 2016 SCC 31.  The Crown also
    concedes that the lifetime prohibition on being within 2 km of the complainant
    (paragraph (b) of the prohibition order) should be varied to a 15 year ban. To
    the extent of these two concessions, we grant the extension to appeal sentence,
    grant leave to appeal, and order the sentence be varied by deleting paragraph
    (d) of the prohibition order, and replacing the lifetime prohibition in
    paragraph (b) with a 15 year prohibition. We cannot address the remainder of
    the prohibition order in the absence of a constitutional challenge, and make no
    comment on its constitutionality. We do not grant the extension of time to
    apply for leave to appeal those aspects of the sentence.

Disposition

[14]

The appeal against conviction is dismissed. We grant an extension of
    time to appeal sentence as set out above, grant leave to appeal, and order the
    sentence varied by deleting paragraph (d) of the prohibition order, and by
    replacing the lifetime prohibition in paragraph (b) with a 15 year prohibition.

Doherty J.A.

Grant Huscroft J.A.

B.W. Miller J.A.


