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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Goudge, Sharpe and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
M. C.
Applicant/Appellant
Paul Calarco, for the appellant
Holly Loubert, for the Crown
Heard and endorsed orally: June 15, 2009
On appeal from the conviction entered by Justice Alan C. R. Whitten of the Superior Court of Justice dated February 15, 2009 and from the sentence imposed by Justice Whitten dated June 20, 2008.
APPEAL BOOK ENDORSEMENT
1The appellant raises three issues on this conviction appeal.
2First, he argues the need for a more explicit charge on the reliability of the complainants’ evidence in light of their prior inconsistent statements. We disagree. The trial judge made clear to the jury the importance of prior inconsistent statements in assessing their evidence. He also brought to their attention many of the particular inconsistent statements relied on by the appellant. With this the jury was in a position to properly address the evidence of the complainants to determine both its credibility and its reliability.
3Second, he argues that the trial judge invited the jury to apply an incorrect standard of evaluation to the complainants’ evidence. Again we disagree. The sentence focussed on by the appellant was in the context of the immediately preceding passage where he brings to the jury’s attention the complainants’ characteristics in addition to their age that they might wish to consider in assessing that evidence. That is exactly what the trial judge should have done.
4Third, the appellant raises three comments on reasonable doubt made in closing by the Crown. Crown counsel in this court (who was not counsel at trial) candidly acknowledges that these comments should not have been made. This court has said so forcefully on many prior occasions. Indeed it would be desirable for steps to be taken to ensure that the criminal justice system has seen the last of such comments. However, where, as here, there was no objection and the comments were followed by an excellent charge on reasonable doubt, there is no reversible error.
5The conviction appeal is dismissed.
6As to sentence, we cannot say that the trial judge misunderstood the fact that penetration occurred only once. Of central importance was the prolonged regime of sexual abuse by someone clearly seen as a parent by the complainants. We cannot conclude that the trial judge acted on the basis of factual error. The sentence was within the range. The sentence appeal must therefore be dismissed.