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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

Criminal Code Provisions

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society's interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

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

Date: 2019-08-26

Docket: C64467

Panel: Watt, Huscroft and Jamal JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Thomas Tomelty Appellant

Counsel:

• Thomas Tomelty, appearing via videoconference
• Benita Wassenaar, for the respondent
• Margaret Bojanowska, duty counsel

Heard: August 20, 2019

On appeal from: The convictions entered on May 15, 2017 and the sentence imposed on June 21, 2017 by Justice Richard H. K. Schwarzl of the Ontario Court of Justice.

Reasons for Decision

Introduction

1The appellant was convicted of several offences after a trial before a judge of the Ontario Court of Justice. In the main, the convictions relate to assaults and threats to his wife and his son. Some had to do with then current events, others with offences alleged to have occurred several years earlier. In addition, convictions were entered for offences involving possession and unsafe storage of a semi-automatic rifle.

2The trial judge imposed a sentence of imprisonment of 28 months in connection with the assault and threatening convictions and fines of $1,000 on each of the firearms counts, together with the usual ancillary orders including victim surcharges.

3The appellant, who appeared by videoconference, appeals both conviction and sentence. He is assisted by duty counsel.

The Background Facts

4The trial proceedings, including the evidence adduced and the closing submissions by counsel on both sides, occupied four court days. When the submissions of counsel concluded, the trial judge reserved his decision. About six weeks later, he gave lengthy written reasons.

5The principal witnesses at trial were the complainants, the appellant's wife and his son. Each was cross-examined at length. The appellant did not testify.

The Appeal from Conviction

6On the appeal from conviction, duty counsel contends that the trial judge failed to turn his mind to the reliability of the testimony of the complainants in determining whether the Crown had proven the offences alleged in the various counts in the information beyond a reasonable doubt.

7In support of this submission, duty counsel pointed to several examples of what she characterized as "major inconsistencies" in each complainant's testimony. Some within the testimony of each witness. Some between the testimony of the witness and his or her statement to investigators. And others as between the accounts of each complainant about the same events. It was incumbent on the trial judge, duty counsel submitted, to resolve these inconsistencies of substance. His failure to do so caused a miscarriage of justice and warrants a new trial.

8It is well-settled that trial judges occupy a unique position in assessing the credibility of witnesses and the reliability of their testimony. The reasons of the trial judge in this case demonstrate his appreciation of the need to carefully assess the evidence before concluding that guilt had been proven beyond a reasonable doubt in a case involving allegations of internal and external inconsistencies in the evidence of the principal witnesses.

9It is also firmly established that a trial judge is under no obligation to record discrete findings of fact in connection with every piece of evidence adduced at trial. Substance controls, not detail.

10In our view, the detailed reasons of the trial judge demonstrate that he grappled with the substance of the live issues at trial. He recognized that the credibility of the victims and the reliability of their evidence were live issues for him to determine. He acknowledged the inconsistencies and resolved those that mattered in establishing guilt beyond a reasonable doubt. Nothing more was required of him.

11The appeal from conviction is dismissed.

The Appeal from Sentence

12Although the appeal from sentence was not pressed in oral argument, we have considered its fitness as is our mandate under s. 687 of the Criminal Code. Our review of the reasons for sentence reveals no error of law or of principle, no failure to consider a relevant sentencing factor, and no erroneous consideration of a relevant aggravating or mitigating factor. In our view, the sentence imposed is not demonstrably unfit, rather properly reflects the fundamental principle of proportionality.

Conclusion

13The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed except that the victim surcharges imposed at trial are set aside.