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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

CITATION: R. v. S.S., 2009 ONCA 107

DATE: 20090204

DOCKET: C47273

COURT OF APPEAL FOR ONTARIO

Sharpe, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

S.S.

Applicant/Appellant

Peter Connelly, for the appellant

Deborah Krick, for the respondent

Heard & released orally: January 30, 2009

On appeal from the judgment of Justice Faye E. McWatt of the Superior Court of Justice, dated April 3, 2007.

ENDORSEMENT

[1] We agree with the appellant that the trial judge failed to deal explicitly with the second step of R. v. W.(D.), (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). The more difficult issue is whether that defect in her reasons is fatal to this conviction. In our view, it is not.

[2] Plainly, it would have been better had the trial judge not omitted the second step. However, we must read this defect in her reasons with

• her characterization of the defence evidence as “rehearsed”, and “evasive, indirect and not at all credible”;

• her acceptance of the complainants’ evidence as “powerfully persuasive” and “convincing”, and

• her overall conclusion that “having listened to and watched the giving of all of the evidence” she was convinced beyond a reasonable doubt of the guilt of the appellant.

Read in that context, we are unable to conclude that, despite the trial judge’s failure to deal explicitly with the second W.(D.) step, she failed to consider whether the defence evidence, even if not believed, gave rise to a reasonable doubt.

[3] Accordingly, we would not give effect to this ground of appeal.

[4] Nor do we consider that the trial judge reversed the burden of proof or placed undue emphasis on the absence of motive to lie on the part of the complainants.

[5] As for the possibility of collusion, this was not a case like R. v. F.J. (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3d) 1 (Ont. C.A.) at para. 77 dealing with the risk of “innocent” collusion that may flow from hearing another person’s story. Here, the fact of the assaults was mentioned but, as the trial judge found, the details were not.

[6] Accordingly, the appeal is dismissed.

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”

“David Watt J.A.”