W A R N I N G
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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
FELDMAN, SHARPE and ARMSTRONG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
A.P.
Appellant
Michael Dineen (duty counsel) for the appellant
Nadia Thomas for the respondent
Heard and released orally: April 28, 2008
On appeal from the conviction and sentence imposed by Justice M.F. Woolcott of the Ontario Court of Justice, October 10, 2007
ENDORSEMENT
1Despite the able argument of Mr. Dineen as duty counsel, we dismiss the appeal against conviction and sentence.
2Certain portions of the cross-examination of the appellant were arguably improper. However, no objection was taken to those passages by trial counsel and no reference was made to those passages by the trial judge in her reasons for judgment which provided detailed grounds unrelated to the contested portions of the cross-examination, for rejecting the appellant’s evidence.
3Read in isolation, the following passage in the trial judge’s reasons could be taken to suggest that she improperly attributed a motive to lie to the appellant when assessing his credibility.
It is common sense, I think, that facing a serious charge an accused whether guilty or innocent would be tempted to lie if he or she thought that lies could exculpate them.
Comments such as these should be avoided. However, this passage must be read in context and, as we read her reasons as a whole, the trial judge had already rejected, on amply explained grounds, the appellant’s evidence. This passage must be read in that light.
4As this court held in R. v. S.V. ,[2007] O.N.C.A. 243 at para. 36:
Thus, having found for valid reasons that an accused’s version of events is incredible, it is not inappropriate for the trier of fact to make the common sense observation that the reason the accused has not been truthful with the court is that he or she does not wish to be convicted.
5Accordingly, we would not give effect to this ground of appeal.
6As for the sentence appeal, again there were passages in the trial judge’s reasons that are problematic. The trial judge described as aggravating factors that the complainant had been compelled to testify and that she had been disbelieved by her mother when she made her allegations of abuse. These were not aggravating factors, but they do bear upon the serious consequence of the offence on the complainant. In any event, even if the description of the aggravating factors amounts to an error, we are not persuaded that the sentence of two years less a day was not a fit sentence given the serious nature of this crime which involved a sexual assault upon a young family member by a close relative.
7Accordingly, the ‘appeal against conviction is dismissed, leave to appeal sentence is granted but the appeal is dismissed.
“K. Feldman J.A.”
“Robert J. Sharpe J.A.”
“R.P. Armstrong J.A.”