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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Goudge, Cronk and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robin Woollam
Applicant/Appellant
Mark Sandler and Wayne Cunningham, for the appellant
Jennifer Crawford, for the respondent
Heard: November 1, 2013
On appeal from the judgment of the Summary Convictions Appeal Court dated August 17, 2012, by Justice Bruce Durno of the Superior Court of Justice, with reasons reported at 2012 ONSC 2188, dismissing the appeal from the conviction entered on November 24, 2010, by Justice Bruce W. Duncan of the Ontario Court of Justice.
By the Court:
1The appellant, who is a family doctor, was convicted of the sexual assault of J.P. after a trial in the Ontario Court of Justice. His appeal to the Summary Conviction Appeal Court (the “SCAC”) was dismissed. He now seeks leave to appeal and, if leave is granted, appeals to this court.
2Section 839(1) of the Criminal Code, R.S.C., 1985, c. C-46, provides that a decision of the SCAC may, with leave of this court, be appealed on any ground that involves a question of law alone. In R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, this court said, at para. 32, that leave may be granted in two different categories of case. First, where the merits of the proposed question of law are arguable, even if not strong, and the question of law has significance to the administration of justice beyond the particular case. Second, where there appears to be a clear error, even if that error does not have significance beyond the specific case.
3Credibility was the central issue at trial. J.P., who was a patient of the appellant, testified that the appellant sexually assaulted her when he conducted a follow-up examination of an ovarian cyst. The appellant gave evidence and categorically denied any sexual assault. The trial judge convicted the appellant on the strength of J.P.’s evidence, the absence of any motive to fabricate her evidence, and her condition and conduct after the incident.
4It is the trial judge’s, and the SCAC’s, treatment of J.P.’s “suspicions evidence” that the appellant advances as the basis for leave to appeal to this court. J.P. had suspicions of circumstances that, after the alleged assault, she came to view as suggesting that the appellant was setting her up for the assault. The appellant argues that the trial judge erred in law by considering J.P.’s suspicions evidence only in assessing her reliability, but failing to consider its impact on her credibility. The appellant says that the SCAC also erred in law in finding that the trial judge did indeed consider J.P.’s suspicions evidence in assessing her credibility. The appellant argues that this failure to correct the trial judge’s misapprehension of the suspicions evidence is a clear error of law with grave professional consequences for him as a doctor. Leave should therefore be granted even if the error has no significance beyond this case.
5In our view, the question of law that is said to arise from the treatment of J.P.’s suspicions evidence by the trial judge cannot be said to have significance to the administration of justice beyond this case. It is a question about the particular treatment of particular evidence in a particular case. It is thus the second paradigm in R. v. R.R. that is engaged. To obtain leave to appeal to this court, the appellant must show that the treatment of J.P.’s suspicions evidence constitutes a clear error of law which was, in effect, repeated by the SCAC.
6In our view, the appellant cannot do so. As the SCAC said, there is no dispute that the trial judge considered whether J.P.’s evidence was credible. Nor can there be any doubt that if the trial judge disregarded material evidence in assessing J.P.’s credibility, he erred in law. The question is whether he factored her suspicions evidence into his credibility analysis.
7We agree with the SCAC that the trial judge did so. He assessed J.P.’s credibility as well as her reliability. He clearly considered all the evidence, including her suspicions evidence, in coming to his ultimate conclusion. There is nothing in the reasons of this experienced trial judge to explicitly indicate that he made the basic error of bifurcating the impact of the suspicions evidence and considering it only in relation to J.P.’s reliability but not her credibility.
8Indeed, the clear implication derived from the trial judge’s reasons as a whole is to the opposite effect. The trial judge addressed the suspicions evidence. He made clear that the important thing is whether he was prepared to draw any inferences about J.P.’s testimony from that evidence. He did not limit this task to inferences about J.P.’s reliability alone. He considered whether J.P.’s suspicions evidence could indicate an over-active imagination or other weakness (which could well affect her credibility). He concluded that J.P. had no motive to fabricate her allegation. And in reaching his ultimate conclusion, one that encompassed his finding of J.P.’s credibility, the trial judge expressly considered the whole of the evidence.
9In summary, a fair reading of the entirety of the trial judge’s reasons leaves us in agreement with the SCAC. We agree that the trial judge cannot be said to have excluded J.P.’s suspicions evidence from his assessment of her credibility. Despite Mr. Sandler’s able argument, we see no clear error of law by the SCAC in coming to that conclusion. It is the correct conclusion. Nor do we accept that the trial judge’s assessment of J.P.’s credibility was otherwise flawed in the ways urged by the appellant.
10There is therefore no basis for granting leave to appeal to this court. As a consequence, we need not deal with the several additional arguments advanced by the appellant on the assumption that leave is granted.
11The motion for leave to appeal is dismissed.
Released: November 21, 2013 (“S.T.G.”)
“S.T. Goudge J.A.”
“E.A. Cronk J.A.”
“S.E. Pepall J.A.”
