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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, LaForme and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
P.S.
Appellant
Daniel F. Moore, for the appellant
Molly Flanagan, for the respondent
Heard and released orally: April 29, 2013
On appeal from the conviction entered on February 14, 2011 by Justice James A.S. Wilcox of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1The appellant raises three grounds of appeal. First, he argues that the trial judge’s reasons are inadequate because he failed to address the defence’s theory that the complainant had a motive to fabricate. We disagree.
2The complainant denied that she had any motive to fabricate. The trial judge accepted her evidence. In so doing, he implicitly rejected the defence’s theory.
3Second, the appellant argues that the trial judge failed to assess the reliability of the testimony of Cormier and Joamie before accepting their evidence. We do not agree with this argument. This was a short trial and, in the circumstances of this case, it was unnecessary for the trial judge to expressly analyze the reliability of the evidence of these two witnesses before accepting it.
4Finally, the appellant argues that the trial judge applied a stricter standard of scrutiny to the evidence of the appellant than to the evidence of the complainant. This is a difficult argument to make and we do not think it is made out in this case. The trial judge recognized that the complainant’s evidence was in part imprecise, but nonetheless, accepted her testimony. That was his call to make.
5Moreover, the trial judge also accepted that the appellant had made two inculpatory statements to his friends. This confirmatory evidence supported the credibility of the complainant.
6The appeal is dismissed.
“John Laskin J.A.”
“H.S. LaForme J.A.”
“Gloria Epstein J.A.”