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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.
CITATION: R. v. Mulder, 2010 ONCA 135
DATE: 20100219
DOCKET: C49672
COURT OF APPEAL FOR ONTARIO
Moldaver, Cronk and Armstrong JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Brandon Mulder
Appellant
Delmar Doucette, for the appellant
Robert Gattrell, for the respondent
Heard and endorsed: February 16, 2010
On appeal from conviction by Justice G. Miller of the Superior Court of Justice dated August 22, 2008 and sentence imposed November 12, 2008.
APPEAL BOOK ENDORSEMENT
[1] In this case, credibility was the central issue. The primary issue on appeal relates to the approach taken by the trial judge in assessing the credibility of the two young complainants who claimed that they were sexually assaulted by the appellant.
[2] In accepting the evidence of the complainants, the trial judge treated everything other than the alleged specific acts of physical contact as peripheral.
[3] In fact, many of the contradictions and inconsistencies in the complainants’ evidence related directly to the alleged incidents of sexual abuse themselves and the surrounding circumstances.
[4] For example, in his testimony at the preliminary inquiry, J.B., while under oath, provided a different and irreconcilable version of the alleged event than the event he described while under oath at trial. Although the trial judge identified certain difficulties with J.B.’s evidence, she failed to come to grips with their significance, particularly the most glaring examples, which she described as merely “perplexing” and minimized as relating to peripheral details.
[5] The trial judge’s approach to the complainant S.M.’s credibility was similarly flawed. While perhaps not as stark – in the case of S.M., the trial judge discounted the more major contradictions and circumstances in his account on essentially the same basis and using the same language.
[6] This was an error in law. By casting too broadly those matters that she considered to be peripheral to the crimes alleged, the trial judge failed to subject the complainants’ evidence to the degree of careful scrutiny required in the circumstances of this case.
[7] In the result, the appeal is allowed, the convictions are set aside and a new trial is ordered.