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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).
486.4(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.
486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
486.4(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.
486.4(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.
486.4(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.
486.6(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
Panel: Sharpe, Watt and Roberts JJ.A.
Between
Her Majesty the Queen Respondent
and
D.L.T. Appellant
Counsel: Yoni Rahamim, for the appellant Kevin Rawluk, for the respondent
Heard and released orally: December 22, 2017
On appeal from: The conviction entered on September 26, 2014 by Justice J.D. Evans of the Ontario Court of Justice
Reasons for Decision
1The appellant appeals from his convictions for sexual assault, sexual interference and unlawful confinement against his daughter when she was under 16 years of age. The sole ground of appeal is that the trial judge gave insufficient reasons to permit meaningful appellate review.
2We do not agree that the trial judge's reasons were insufficient. While the reasons were brief, it is clear from his reasons why the trial judge reached his decision.
3The outcome at trial turned on the credibility of the witnesses and the reliability of their evidence. The trial judge reviewed the evidence of all of the witnesses.
4With respect to the complainant, the trial judge gave several cogent reasons why he accepted her evidence.
5The inconsistencies in the complainant's testimony about time, frequency and location of the previous historical sexual assaults, which the appellant highlights, are peripheral to the events of April 16, 2013, which form the basis for the charges, and do not disturb the trial judge's conclusion that the complainant remained consistent throughout her testimony. As he was entitled to do, the trial judge found that the complainant was unshaken in her evidence concerning the offences that occurred on April 16, 2013 when the appellant confined her in C.P.'s bedroom. It was open to the trial judge to find that the complainant's evidence was reliable about events which occurred less than a month before she gave her first statement to police and just over a year before she testified at trial.
6The appellant also submits that the trial judge failed to give effect to the animus that the complainant felt towards her stepmother, Ms. P., which he says materially affected the credibility and reliability of the complainant's allegations against her father. We disagree. The trial judge was alive to the complainant's animosity towards her stepmother but also noted, correctly, that she appeared to have no animus towards her father. It does not logically, much less automatically, follow that the complainant would fabricate allegations against her father because she disliked her stepmother.
7After correctly applying the analysis from R. v. W.(D.), [1991] 1 S.C.R. 742, to the evidence of the appellant and defence witnesses, the trial judge indicated why he did not accept the appellant's denial of the offences and why the defence evidence did not leave him with a reasonable doubt. In particular, the trial judge found that the appellant's evidence was contradicted in material respects by the evidence of Ms. P., including the very significant fact that there was a lock on the bedroom door, which was a critical part of the index offences.
8We see no error in the trial judge's analysis or findings.
9Accordingly, the appeal is dismissed.
Robert J. Sharpe J.A. David Watt J.A. L.B. Roberts J.A.
