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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, Armstrong and Blair JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Ennio Borsi
Appellant
Benissa Yau, for the appellant
Karen Papadopoulos, for the respondent
Heard: August 20, 2009
On appeal from the conviction imposed by Justice Frank J.C. Newbould of the Superior Court of Justice dated February 27, 2008 and from the sentence imposed by Justice Newbould dated April 7, 2008.
APPEAL BOOK ENDORSEMENT
1In our view in the circumstances here the jury would have clearly understood the evidence relevant to the defence position that the complainant should not be believed. These circumstances include the brevity of this one day trial; the fact that there was only one witness, the complainant; her credibility was the sole issue; the full and detailed cross-examination of the complainant on her inconsistencies; the defence closing that focused on those inconsistencies; the general charge on how to evaluate credibility; and the absence of defence objection to the charge on this issue. The appellant’s first argument on the conviction appeal must fail.
2Secondly the trial judge did not err by telling the jury that penetration is not relevant to establish sexual assault. He was correct as matter of law and by doing so he did not remove the issue of her inconsistent evidence on penetration from consideration in evaluating the complainant’s credibility. Her cross-examination and the closing submissions of the defence both focussed on the inconsistency and the trial judge reviewed the evidence in respect of it. While it would have been preferable to remind the jury that the complainant’s inconsistencies about penetration were relevant to assessing her credibility, we are satisfied overall that the jury understood their task and the evidence relevant to it.
3The conviction appeal is dismissed.
4As to sentence, this is a serious offence. The sentence is not outside the range and reflects no error in principle. Leave granted. Appeal of sentence dismissed.