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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..
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., Doherty and van Rensburg JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
S.F.
Appellant
Vincenzo Rondinelli, for the appellant
John A. Neander, for the respondent
Heard and released orally: November 8, 2016
On appeal from the conviction entered on July 24, 2014 by Justice M. Epstein, of the Ontario Court of Justice.
ENDORSEMENT
1The appellant advanced several grounds of appeal in his factum. In oral argument, counsel advanced two submissions. We will address those submissions in these reasons. We are satisfied that there is no merit to the other grounds advanced in the factum.
The First Ground of Appeal
2We do not agree with the submission that the trial judge’s questioning of the appellant at the end of his evidence rendered the trial unfair or created an appearance of unfairness. The questions posed by the trial judge addressed two areas. The first area arose out of the appellant’s evidence that when the complainant was six years old, she and a friend had come into his room twice while he was sleeping and touched his genitals. The trial judge asked the appellant what, if anything, he had done to prevent the repetition of that conduct. This matter had been canvassed in the evidence to some extent.
3The second area of the trial judge’s questions related to the content of statements given by the appellant to the police and to his daughter. The appellant had offered an explanation for certain errors that he said he had made in those statements. The trial judge asked about the errors and, in particular, how the explanations applied to his statements made to the daughter.
4The trial judge’s questions posed in the first area gave the appellant an opportunity to further explain what steps, if any, he had taken to avoid the repetition of the conduct of his daughter and her friend that he had described. This issue was of obvious concern to the trial judge and was germane to the believability of the appellant’s evidence on a very important issue. The questions properly fall under the rubric of “amplification”. The questions were asked of the appellant at an appropriate time in the trial, that is, after the examination by counsel and were asked in an appropriate manner. In our view, if anything, the questions enhanced the appearance of the fairness of the trial.
5The questions asked by the trial judge in the second area also gave the accused an opportunity to provide a further or better explanation for statements he had made, particularly to his daughter and the errors that he said he had made in those statements. However, this questioning clearly had a tone of cross-examination and potentially left the appellant in a position where there was nothing he could possibly say in answer to the question. It probably would have been better had the trial judge left this area alone. However, we are satisfied that his questions did not impair the fairness of the trial, or the appearance of the fairness of the trial.
6This ground of appeal fails.
The Second Ground of Appeal
7Counsel alleges various errors by the trial judge in his treatment of the evidence of a witness named Nickole Atkinson. We do not accept these submissions. The trial judge found that the demeanour and deportment of the witness on the witness stand showed her to be a person strongly committed to the protection and support of victims of child abuse. He found that deportment to be entirely consistent with her evidence of the very positive, if not aggressive, steps she took when the complainant first revealed that she had been sexually abused by the appellant. We see no error in the trial judge’s treatment of this aspect of Ms. Atkinson’s evidence. Insofar as the other complaints are concerned, the trial judge fully and fairly reviewed Ms. Atkinson’s evidence. His findings that she was a credible and, indeed, powerful witness were, in our view, open to him on this record and we defer to them.
8The appeal is dismissed.
“Alexandra Hoy A.C.J.O.”
“Doherty J.A.”
“K. van Rensburg J.A.”