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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.

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. 205, c. 32, s. 15.

Court File and Parties

CITATION: R. v. G.E.S., 2009 ONCA 758

DATE: 20091102

DOCKET: C47382

COURT OF APPEAL FOR ONTARIO

Feldman, Blair and Watt JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

G.E.S.

Appellant

Joseph Di Luca, for the appellant

Kim Crosbie, for the respondent

Heard and released orally: October 28, 2009

On appeal from conviction by Justice Silja Seppi of the Superior Court of Justice dated May 24, 2009 and sentence imposed dated July 9, 2007.

ENDORSEMENT

Overview

1The appellant was found guilty of numerous sexual offences against five girls while they were between the ages of 7 and 16. He sexually abused his daughter, two of her childhood friends, his step-daughter and his sister-in-law. The offences in total spanned more than 25 years from 1963 to 1989. In severity, the abuse ranged from fondling to attempted anal and vaginal rape.

Appeal Against Conviction

2The appellant raised two grounds on the appeal against conviction. The first is that the trial judge used hearsay evidence of prior consistent statements to Dr. Mech, whose notes were admitted as past recollection recorded, in order to bolster the trial judge’s findings of credibility. Appeal counsel fairly conceded, however, that trial counsel in his closing submissions agreed that the hearsay statements could be used for the truth of their contents either for or against the appellant. The appellant is bound on this appeal by this strategic concession.

3The second ground raised is that the trial judge misapplied some pieces of evidence which she used in evaluating the credibility of the appellant. We would also not give effect to this ground. The trial judge was entitled to draw conclusions regarding the appellant’s lack of candour based on her appreciation of the meaning of these pieces of evidence. We see no error in her approach.

Appeal Against Sentence

4The appellant also appeals his sentence of 10 years 6 months as manifestly unfit. We disagree. In our view, the sentence appropriately reflects the moral blameworthiness of the appellant who was in a position of trust, and the gravity of these offences against five young female victims over a 25-year period.

Disposition

5The appeal is allowed on consent on count 17, as it was a summary conviction offence, and the conviction on that count is quashed.

6The balance of the appeal against conviction is dismissed.

7Leave to appeal sentence is granted but the appeal is dismissed.

Signed: “K. Feldman J.A.”