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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 File and Parties
COURT OF APPEAL FOR ONTARIO
Laskin, Goudge and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
B.C.
Appellant
J. Scott Cowan, for the appellant
John McInnes, for the respondent
Heard and released orally: September 16, 2011
On appeal from the conviction entered on June 13, 2009 by Justice Guy P. DiTomaso of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1The appellant makes two submissions on his conviction appeal. His first submission is that the Crown’s cross-examination and closing argument on why the complainant would make false allegations was improper. Even if the questioning and argument were improper, both were brief and were not objected to by defence counsel. Most important, the trial judge gave a proper curative instruction.
2Accordingly, we do not give effect to this ground of appeal.
3The appellant’s second submission is that the guilty verdicts on counts 1 to 3 are unreasonable because they are inconsistent with the verdict of acquittal on count 4, the incest charge. We do not consider the verdicts inconsistent.
4Standing alone, the verdicts on counts 1 to 3 are not unreasonable. Although the complainant’s evidence on these counts was at times vague, it was evidence on which a properly instructed jury could reasonably convict. Thus, the appellant’s contention comes down to the proposition that the jury could not have acted reasonably because it acquitted on the count that the complainant remembered clearly and convicted on the counts that the complainant only vaguely testified about. We do not read the record this way.
5As the Crown points out, the complainant’s evidence on all the counts was at times vague and at times clear. It was open to the jury to reject none, some or all of the complainant’s evidence. Accordingly, the verdicts are not inconsistent and this ground of appeal must fail.
6The appeal is dismissed.
“John Laskin J.A.”
“S.T. Goudge J.A.”
“H.S. LaForme J.A.”
