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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29.
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
Hoy A.C.J.O., MacFarland and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
P.G.
Appellant
David E. Harris, for the appellant
Michelle Campbell, for the respondent
Heard and released orally: September 5, 2014
On appeal from the conviction entered by Justice T.D. Ray, of the Superior Court of Justice, sitting without a jury, dated October 27, 2011.
ENDORSEMENT
1The appellant was charged with the sexual touching and sexual assault, between March 1, 2007 and March 31, 2009, of the complainant, a young child. The indictment did not particularize where or how many times the touching and assault allegedly occurred.
2The trial judge found that the appellant touched the complainant for a sexual purpose and sexually assaulted her on several occasions in the course of her access visits with her mother.
3The appellant argues that the trial judge erred when he found that the first of the incidents occurred in the appellant’s truck and that this error played an essential part in the trial judge’s reasoning process resulting in the appellant’s convictions. The appellant submits that the evidence of the complainant, properly interpreted, was that the sexual touchings and sexual assaults began at a time when the appellant – her mother’s then boyfriend – picked up the complainant for her access visits in his truck, alone, and not that the first incident occurred in the appellant’s truck.
4Even accepting that the trial judge erred in concluding that the first incident occurred in the appellant’s truck, we are not persuaded that such an error played an essential part in the trial judge’s reasoning process resulting in the appellant’s convictions.
5We reject the appellant’s argument that the trial judge’s finding that other, subsequent incidents of sexual touching and sexual assault occurred flowed from the trial judge’s finding that the first incident happened in the appellant’s truck. The trial judge considered each incident separately. He noted that the complainant described the other assaults “in graphic detail”.
6Nor do we accept the appellant’s argument that if the trial judge erred, the error tainted his credibility findings. As the trial judge noted in finding that the first incident occurred in the appellant’s truck, the complainant’s stepmother confirmed the complainant’s evidence that that the appellant sometimes picked the complainant up in his truck alone. If – as the appellant argues – this part of the stepmother’s evidence played a role in the trial judge’s assessment of the overall credibility and reliability of the complainant, logically, the value of such evidence would not have been affected by an error with respect to the location of the first incident.
7Accordingly, this appeal is dismissed.
“Alexandra Hoy A.C.J.O.”
“J. MacFarland J.A.”
“David Watt J.A.”