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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
O’Connor A.C.J.O., Weiler and Hoy JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
E.J.
Appellant
E.J., appearing in person
Matthew Gourlay, appearing as duty counsel
Melissa Adams, for the respondent
Heard and released orally: September 13, 2012
On appeal from the conviction entered on May 3, 2010 and the sentence imposed on May 25, 2010 by Justice Lynn Leitch of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1The appellant appeals his convictions for sexual assault and choking to assist in the commission of an indictable offence.
2The appellant submits that the trial judge erred by subjecting the evidence of the appellant and complainant to differing levels of scrutiny or alternatively that the reasons are “insufficient”.
3We are of the opinion that the trial judge carefully analyzed the evidence of all the witnesses. She sufficiently explained why she rejected the appellant’s denial of guilt and how she resolved the significant issues of credibility respecting the complainant’s evidence.
4While the appellant submits that the trial judge did not give meaningful scrutiny to the evidence of Mr. Albert, an unsavoury witness, the appellant candidly admitted that the trial judge cautioned herself respecting his evidence. The trial judge also observed that Mr. Albert’s evidence was consistent with that of other credible and independent witnesses and mentioned in particular the evidence of Mr Long the bailiff at the Hamilton Detention Centre. The trial judge was entitled to make the finding she did with respect to the photographs. Her reasons were responsive to the live issues before her. Overall, the appellant has not persuaded us that the reasons of the trial judge indicate she applied different standards in assessing the evidence of the appellant and the complainant.
5The appellant also submits that the trial judge erred when she used the timing of the appellant’s disclosure of the “extortion letter” to his counsel, to draw an inference against the appellant’s credibility.
6At trial, defence counsel volunteered the information that he knew of the alleged extortion letter long before the trial but only received it the week before. As a result, the appellant submits that there was no adverse inference to be drawn against him on his credibility. While we agree with this latter submission we do not agree that the trial judge attached the importance to the remark that counsel submits. We are satisfied that the trial judge had decided that the appellant was not a believable witness before making this remark in her reasons and that her remark was made in the course of addressing outstanding issues that had been raised in submissions.
7Accordingly the appeal is dismissed.
“D. O’Connor A.C.J.O.”
“K.M. Weiler J.A.”
“Alexander Hoy J.A.”