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) or (3) or 486.5(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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, 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.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

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.

Court File and Parties

CITATION: R. v. Cormier, 2009 ONCA 566

DATE: 20090713

DOCKET: C49278

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Cormier

Appellant

Bernard Cugelman, for the appellant

Gavin MacDonald, for the respondent

Heard and released orally: July 10, 2009

On appeal from the convictions entered on November 28, 2007 by Justice J. McIsaac of the Superior Court of Justice.

ENDORSEMENT

[1] The convictions for sexual abuse underlying this appeal were based to a large extent on the evidence of the complainant. The alleged offences occurred between 1997 and 1999. At the time, the complainant, a boy, was between six and eight years of age. At the time of the trial, he was 16 years of age.

[2] The trial judge accepted the complainant’s evidence. The trial judge appropriately recognized the difficulties with some aspects of the evidence and evaluated the testimony in a common sense manner. He found independent support for the complainant’s evidence in the fact that the appellant had pleaded guilty in 1999 to making child pornography. The appellant had photographed the complainant, then eight years old, in the nude. The appellant did not testify at trial.

[3] The majority of the appellant’s complaints about the trial judge’s reasons for accepting the complainant’s evidence relate to inconsistencies and contradictions in the evidence about the times, the locations and the frequency of the alleged assaults. We agree with the trial judge that these types of mistakes, when viewed in the context of all of the complainant’s evidence, do not “compromise the core quality of the complaints… which ring true in their detail.” We would not interfere on the basis of these types of mistakes in the complainant’s evidence.

[4] The appellant also argues that the trial judge erred in relying upon the pornography conviction as buttressing the complainant’s evidence. We disagree. In our view, it was open to the trial judge to rely on this evidence as showing the appellant’s sexual interest in the complainant and for the purpose of refuting the suggestion that the appellant did not have an opportunity to abuse the complainant because he was never alone with him.

[5] We note that although the complainant saw a therapist and discussed the sexual activities with the appellant, the defence acknowledged at trial that there was no evidence of falsely recovered memory nor was such a defence advanced at trial.

[6] Finally, the appellant argues that the trial judge erred in explaining away the complainant’s denial at the time of the pornography charge in 1999 that the appellant had sexually assaulted him. The trial judge said that the denial was “nothing more than a pathetic attempt to protect [the appellant]”. Neither the Crown nor the defence asked the complainant why he denied the assaults in 1999. Thus, there was no direct evidence to support the trial judge’s comment. Nevertheless, in our view, it was open to the trial judge on the evidence to draw the inference that the complainant was attempting to protect the appellant.

[7] The evidence established that at the time the complainant had a very close relationship with the appellant. He looked up to him and enjoyed his company. Moreover, the complainant testified that he told the investigators in 1999 that he had asked the appellant to take photographs of him. While the complainant did not specify that he was referring to nude photographs, it was the clear implication of his evidence that he was. Given the improbability that the complainant would have made such a request and the relationship between the complainant and the appellant, we are satisfied that it was open to the trial judge to infer that the 1999 denial was made in an attempt to protect the appellant. We see no merit to this ground of appeal.

[8] In the result, the appeal is dismissed.

“D. O’Connor A.C.J.O.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”