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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Doherty, LaForme and Pepall JJ.A.
Her Majesty the Queen
Appellant
and
Christopher Horton
Respondent
Philippe G. Cowle, for the appellant
Howard L. Krongold, for the respondent
Heard and released orally: November 27, 2013
On appeal from the acquittals entered by Justice Sheppard of the Ontario Court of Justice, dated October 2, 2012.
ENDORSEMENT
1The charges arose out of events that occurred some 20 to 25 years ago when the complainant was a young girl and the respondent was living with the complainant and her mother. This was a straightforward three-witness case. The outcome turned entirely on the trial judge’s assessment of the credibility and reliability of the witnesses, particularly the complainant and the respondent. That assessment, of course, had to occur in the context of the well-known three-part test described in R. v. W.D.
2Despite Crown counsel’s vigorous argument, we are satisfied that the trial judge did consider all of the evidence and did assess both the complainant and the respondent’s evidence in the context of the entirety of the evidence. The trial judge indicated he had done so on several occasions in the course of his reasons.
3The trial judge did not reject the complainant’s evidence as unreliable because of the historical nature of the allegations or because her evidence was not confirmed in any way as it related to the actual alleged sexual misconduct. Instead, the trial judge referred to these two things, among others, as factors that were relevant to his assessment of the entirety of the evidence. He was correct in doing so.
4We do not think that the trial judge ultimately rejected the complainant’s evidence. Instead, he determined that he was unable to reject the respondent’s evidence to the degree necessary to be satisfied beyond a reasonable doubt. This left him in the position described in the second arm of the W.D. test. He correctly applied that test and the acquittals followed. This case turned more on a failure of proof of guilt to the level required to establish guilt beyond a reasonable doubt than it did on a finding that the complainant’s evidence was unreliable or incredible. The essence of the trial judge’s analysis is captured in his closing words:
This is not to say and I am not saying that things may well have happened to N.E. and that she was quite proper to disclose those to medical authorities. This judgement stands for the proposition that it is always the state’s responsibility to prove those matters beyond a reasonable doubt if a criminal sanction is sought and they are unable to do so because of the historical nature of these allegations, I believe.
5Counsel also argued that the reasons were so inadequate as to give rise to an error in law. We cannot agree with this submission. In our view, the trial judge made it clear that he was acquitting on the basis that the respondent’s evidence, considered in the context of the entirety of the evidence, left him with a reasonable doubt. In our view, the trial judge’s reasons did permit appellate review. Any complaints with those reasons beyond that do not give rise to an error in law.
6The appeal must be dismissed.
“Doherty J.A.”
“H.S. LaForme J.A.”
“S. Pepall J.A.”