WARNING
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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Laskin, Goudge and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
B.A.
Appellant
Carlos Rippell, for the appellant
Joan Barrett, for the respondent
Heard and released orally: September 16, 2011
On appeal from the conviction entered on February 15, 2011 and the sentence imposed on March 8, 2011 by Justice Joseph A. De Filippis of the Ontario Court of Justice.
ENDORSEMENT
1The trial judge gave four reasons for finding that the appellant’s evidence was not credible. His first, and arguably main reason, was that the appellant was not forthright about the extent of his criminal record. Indeed, the trial judge found that the appellant deliberately failed to disclose his complete record. In our view, this was not a fair or tenable basis for rejecting the appellant’s evidence because of the way the criminal record was put into evidence.
2As is often the case, defence counsel led the record at the beginning of his client’s evidence. Defence counsel obtained the record from the Crown. The record he obtained, however, was not complete because it did not contain the appellant’s three most recent convictions: one for impaired driving and two for breach of recognizance. Defence counsel said that he was going to have his client admit the record. He asked the appellant whether the record “accurately reflects your criminal record”. The appellant said “yes it does”. Of course it did not. That it did not emerged in cross-examination.
3When the appellant volunteered that he had not yet moved out of the house because he was waiting for his licence suspension to end, the Crown asked whether the suspension was as a result of a criminal conviction. The appellant readily admitted that he had recently been convicted for impaired driving. Later, in response to questions from the Crown, the appellant admitted that he had been guilty of two breaches of recognizance. As we read the record, in neither of these instances was the appellant being evasive or deliberately trying to hide his record. That the record handed to him in his examination-in-chief was incomplete, appears to have been due to an inadvertent error by both Crown and defence counsel.
4In the light of this context in which the appellant’s criminal record was introduced, the trial judge was not justified in using it to make an adverse credibility finding. The trial judge did give other reasons for rejecting the appellant’s evidence. However, his error in finding that the appellant’s initial mistake and acknowledgement of his record was not “innocent” irretrievably tainted his credibility finding.
5For that reason alone, the convictions cannot stand. Accordingly, the appeal is allowed, the convictions are set aside and a new trial is ordered.
“John Laskin J.A.”
“S.T. Goudge J.A.”
“H.S. LaForme J.A.”