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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 File and Parties
COURT OF APPEAL FOR ONTARIO
Sharpe, MacFarland and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
C. M.
Appellant
Joseph Di Luca, for the appellant
Brad Greenshields, for the respondent
Heard and released orally: January 20, 2010
On appeal from the conviction entered on December 13, 2006, and the sentence imposed on October 17, 2007, by Justice David Corbett of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1The appellant raises three grounds of appeal against conviction.
2First, the appellant submits that the trial judge failed to conduct a voir dire before admitting the complainant’s hearsay statement when she first complained. While there was no voir dire and no recorded ruling dealing with the admission of this evidence, we do not accept the submission that these shortcomings undermine the conviction. There was no request for a voir dire at trial and no objection by trial counsel to the admission of this evidence. The evidence was admissible in any event as part of the narrative and it was one of a series of out-of-court statements that were properly admitted. We see no error that would justify this court in interfering with the conviction on this ground.
3Second, the appellant submits that the trial judge applied a different level of scrutiny to the complainant’s evidence than to the evidence of the appellant. It is clear on the case law that this argument is difficult to establish. The trial judge gave very detailed reasons explaining why he accepted the complainant’s evidence, why he rejected that of the appellant, and why he found that the Crown’s case was proved beyond a reasonable doubt. We are satisfied that to the extent there are differences in the way he assessed the complainant’s evidence, those differences arose from factors properly considered by a trial judge when faced with the difficult and delicate task of assessing the evidence of a child witness who alleges sexual misconduct by a parent. Reading his reasons as a whole, we do not accept the argument that he applied a different standard to the complainant’s evidence than he did to the evidence of the appellant.
4Third, the appellant submits that the trial judge erred by terminating the cross-examination of the complainant prior to its completion. The trial judge stopped the cross-examination because of the complainant’s distress at a point where defence counsel acknowledged that he had almost reached the end of his questions. Reading the examination and the cross-examination as a whole, it is clear that defence counsel had already done all he could in the circumstances to explore inconsistencies in the complainant’s evidence. The trial judge indicated that he would assume that the complainant could not explain any remaining inconsistencies. In these circumstances, we do not agree that the trial judge erred in making the ruling he made, or that the trial judge was required to make any further allowance on account of the curtailment of the cross-examination.
5Finally, the appellant appeals his sentence of seven months imprisonment. In our view, this sentence was well within the acceptable range and we see no error in principle that would justify appellate interference.
6Accordingly, the conviction appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.
“Robert J. Sharpe J.A.”
“J. MacFarland J.A.”
“David Watt J.A.”
