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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, Goudge and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Patrick Ellis
Appellant
R. Craig Bottomley and Chris Sewrattan, for the appellant
A. Rubaszek, for the respondent
Heard and released orally: February 11, 2014
On appeal from the conviction entered by Justice G. DiTomaso of the Superior Court of Justice, dated December 16, 2011.
ENDORSEMENT
1The trial judge gave detailed reasons which reveal a full appreciation of the evidence, the requirement that the Crown prove its case beyond a reasonable doubt, and the guiding principles as enunciated in R. v. W.D.
2We do not agree that he reversed the onus or reached a verdict by choosing between the competing versions of the relevant events. The trial judge gave detailed, fully supportable reasons for rejecting the appellant’s evidence as incapable of raising a reasonable doubt. He considered the appellant’s evidence in the context of the other evidence in arriving at that conclusion. After engaging in what are commonly referred to as steps one and two of W.D., the trial judge moved to step three. He provided an equally detailed and equally supportable explanation for accepting the complainant’s evidence and concluding that her evidence, combined with the supporting evidence which he also accepted, satisfied him beyond a reasonable doubt that the appellant had sexually assaulted the victim. In our view, the reasons do not reveal the errors alleged by the appellant.
3The trial judge’s finding that the forensic evidence was “neutral” was a finding that the evidence did not assist in determining whether the victim had been sexually assaulted. On the evidence of the expert, Exhibit 5 at trial, the trial judge was entitled to take that view of the evidence and conclude, therefore, that it could not leave him with a reasonable doubt as to the appellant’s guilt.
4The conviction appeal is dismissed.
“Doherty J.A.”
“S.T. Goudge J.A.”
“C.W. Hourigan J.A.”