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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 File and Parties
COURT OF APPEAL FOR ONTARIO
Armstrong, Lang and Epstein JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Johnathon Wing
Appellant
Sam Scratch for the appellant
Joanne Stuart for the respondent
Heard: September 8, 2008
On appeal from the conviction entered on November 27, 2006, and the sentence imposed on January 23, 2007, by Justice Thomas M. Dunn of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1In our view, it was unnecessary for the trial judge to give an instruction to the jury, which we note is requested for the first time on appeal, not to use the complainant’s s. 715.1 videotaped statement to bolster the other evidence she gave at trial eight months later. Importantly, the Criminal Code specifically takes a child’s s. 715.1 statement out of the category of a prior consistent statement and makes it part of her trial evidence. In accordance with that provision, the trial judge specifically told the jury that the video statement would be “part of the evidence” before it was played. In his charge at the end of the trial, he again told the jury that the statement was “part of [the complainant’s] evidence”. In addition to other instructions given about assessing the complainant’s evidence, the trial judge specifically explained that the procedure was designed to help young people to give evidence and that the jury could not use that procedure to conclude the accused was guilty of the offences charged.
2In our view, there is nothing about the complainant’s evidence in this case that would require the requested caution. Immediately after adopting her s. 715.1 statement as true, the complainant responded to the Crown’s question at trial about “what else” the appellant did to her. In her response, the complainant repeated some aspects of the appellant’s conduct. However, her repetition was no different than occurs in the usual trial where a witness is asked more than once, both in examination in chief and in cross-examination, about the event in light of the additional allegations against the appellant.
3The appellant also argues that the trial judge should have applied the Kienapple principle to stay the appellant’s convictions for sexual interference and invitation to sexual touching. Irrespective of the fact that this issue is also raised for the first time on appeal, the two additional offences have a different legal nexus than the offence of sexual assault. Both offences related to offences against a person under the age of 14. In addition, the offence of sexual interference relates to an accused who touches a person under 14 for a sexual purpose and the offence of invitation to sexual touching relates to an accused who invites or counsels the young person to touch the offender for a sexual purpose. Since these two offences are different in law from the offence of sexual assault, we do not accept that Kienapple properly applies.
4For these reasons, we would dismiss the appeal. Finally, we note that the appellant abandoned his first ground of appeal as well as his sentence appeal.
“Robert P. Armstrong J.A”
“S.E. Lang J.A.”
“G. Epstein J.A.”