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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Sharpe, Epstein and Lauwers JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
B.T.
Respondent
Benita Wassenaar for the appellant
Paolo Giancaterino, Michael A. Smith and Jessica Abou-Eid for the respondent
Heard and released orally: August 26, 2013
On appeal from the order of Justice Colin D.A. McKinnon J. of the Superior Court of Justice, December 4, 2012, allowing a summary conviction appeal from the sentence imposed on May 28, 2010 by Justice Jack D. Nadelle of the Ontario Court of Justice.
ENDORSEMENT
1The respondent was convicted of sexual assault and sexual touching and sentenced to a total of 6 months imprisonment. The complainants were 12 and 16 years old at the time of the offences and were friends of the respondent’s step-daughter. At the sentencing hearing, the trial judge refused to permit the respondent’s counsel to cross-examine the complainants on their victim impact statements.
2The summary conviction appeal judge dismissed the appeal from conviction but allowed the appeal from sentence on the ground that the trial judge had erred by refusing to permit cross-examination on the victim impact statements. He remitted the matter to the trial court to hold a fresh sentencing hearing.
3The Crown seeks leave to appeal on the ground that the summary conviction appeal judge had no jurisdiction to remit the matter for a fresh sentencing hearing and that he also erred in finding that the trial judge should have permitted cross-examination on the victim impact statements.
4For the following reasons, we grant leave to appeal and allow the appeal.
5It is conceded that the summary conviction appeal judge erred in remitting the matter to the trial judge to hold a fresh sentencing hearing. The summary conviction appeal judge had no jurisdiction pursuant to the relevant provisions of the Criminal Code governing summary conviction appeals to make such an order. The respondent does not dispute that leave to appeal must be granted and the appeal allowed on that issue.
6We also grant leave on the issue with respect to the permission to cross-examine on the victim impact statements. In our view, the summary conviction appeal judge erred in finding an error on the part of the trial judge. The complainants did not read their victim impact statements in open court. The respondent’s counsel stated that he proposed to ask the complainants a few questions “so Your Honour can get a full flavour of where these individuals may be at. I am in the court’s hands.” The trial judge indicated that he was not inclined to allow the cross-examination and counsel did not press the matter or provide any facts or further details to explain the basis for his proposed cross-examination. In our view, on this record, the respondent failed to identify with sufficient clarity a fact or facts contained in the victim impact statements that were disputable and that the request to cross-examine was not specious or empty as required by R. v. V.W., 2008 ONCA 55.
7In any event, we note that the trial judge did not appear to have placed any significant reliance on the victim impact statements when determining the appropriate sentence. He indicated that he had read the statements and explained their use in a proper way. The sentence he imposed was well within the range for these offences quite apart from any potentially aggravating factors revealed in the victim impact statements.
8The fresh evidence as to the respondent’s state of health, in the circumstances of this case, is a matter for the correction officials to consider when dealing with the respondent and does not persuade us that the otherwise fit sentence should be varied.
9Accordingly, we grant leave to appeal, allow the appeal and pursuant to ss. 687 and 839(2), restore the sentence imposed by the trial judge. The appellant is ordered to surrender into custody forthwith failing which, a warrant for his arrest shall issue.
“Robert J. Sharpe J.A.”
“Gloria Epstein J.A.”
“P. Lauwers J.A.”