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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
LASKIN, MACFARLAND and EPSTEIN JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
R. M.
Appellant
David A. Reid for the appellant
Michelle Campbell for the respondent
Heard and released orally: July 8, 2008
On appeal from the conviction entered on March 7, 2007 by Justice James A. Ramsay of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
[1]
Sexual Assault and Sexual Interference
The appellant submits that the convictions for sexual assault and sexual interference are unreasonable. His main ground of appeal is that the inconsistencies in the complainant’s evidence and, in at least one instance, an outright lie, rendered her overall testimony too unreliable to support the convictions. The appellant buttresses this ground of appeal by arguing that the trial judge erred in giving any confirmatory weight to the mother’s evidence in the light of its obvious unreliability. We do not accept the appellant’s submission.
2The trial judge was alive to the problems in both the complainant’s and her mother’s testimony. He addressed these problems and gave reasons why he accepted their testimony, especially the testimony of the complainant. We are not persuaded that he committed any reviewable error in his assessment of the credibility and reliability of the evidence of these two witnesses. Their evidence, with all its frailties, reasonably supports the convictions for sexual assault and sexual interference. Therefore, the appellant’s submission fails.
[3]
Accessing Child Pornography
The appellant also submits that the conviction for accessing child pornography is unreasonable. The defence conceded that the April 13 photos were child pornography under the Criminal Code. However, the appellant contends that the trial judge erred in relying on these photos in the light of the Crown’s statement at the preliminary inquiry it was “not relying on the events of that day to support the charges”.
4We do not agree with this contention. The appellant accessed these photos seven days after the incident on April 13. This act of accessing the photos was separate from the acts that took place on April 13, and was not covered by the Crown’s statement at the preliminary inquiry. However, even if the Crown’s statement was broad enough to cover the April 13 photos, in our view, there was other evidence to support the conviction on this count. Apart from the April 13 photos, the trial judge was entitled to rely on the complainant’s evidence that she sent the appellant “sexual” photos of herself on other occasions. Although these other photos were not put in evidence, the chat logs support the complainant’s testimony and provide a reasonable basis for finding that these photos were child pornography.
[5]
Private Use Exception
Finally, we do not think that it is open to the appellant to raise for the first time on appeal the “private use” exception recognized by the Supreme Court of Canada in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45. We agree with the Crown that the appellant has failed to show a sufficient evidentiary record to resolve this issue. In particular, we have no finding or adequate record to determine whether the sexual activity was consensual.
[6]
Disposition
For these reasons, the appeal is dismissed.
“John Laskin J.A.”
“J. MacFarland J.A.”
“G. Epstein J.A.”
