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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20200108 Docket: C64969

Pardu, Roberts and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Wayne Jones Appellant

Counsel: Najma Jamaldin, for the appellant Ken R. Lockhart, for the respondent

Heard and released orally: December 6, 2019

On appeal from the convictions entered on December 14, 2018 by Justice S.A.Q. Akhtar of the Superior Court of Justice.

Reasons for Decision

[1] The appellant argues that the trial judge erred in refusing to admit the expert evidence proffered by him at trial. As the trial judge indicated, Dr. Moore’s report “indicated that he would give opinion evidence on the length of time between the allegations and the reports, and on the question of: are these complainants ‘remembering’ sexual assaults or are they reinterpreting past interactions with the defendant as sexual assaults as a result of recent media coverage”.

[2] His evidence was offered to suggest that it was possible that media coverage of the allegations by B caused X and Y to incorrectly recall what had happened to them over two decades earlier.

[3] The trial judge concluded that the evidence was not necessary, relying on R. v. T.C., [2004], 72 O.R. (3d) 623 and concluded that these matters were the stock and trade of what trial judges do day in and day out.

[4] In any event, the trial judge expressly recognized in paras. 326 and 327 of his reasons that he accepted that false memories could be created because of external events occurring years later but rejected the submissions that this had occurred in this case: see para. 33 of R. v. T.C.

[5] We see no error in the trial judge’s treatment of this issue nor any prejudice to the appellant.

[6] Secondly, the appellant argues that the trial judge erred in his assessment of the credibility of X and Y because in the case of X, he did not expressly advert to prior inconsistent statements by X and in the case of Y, that he did not give sufficient weight to those inconsistencies, accepting that she was confused.

[7] The trial judge gave thorough reasons explaining why he found X and Y credible with respect to their core allegations of sexual assault. He convicted on counts for which he found support for their testimony from other witnesses. Deference is owed to his assessment of credibility and we see no error in his weighing of the credibility and reliability of the evidence, particularly in light of the highly probative similar fact evidence.

[8] The appellant suggests that there were problems with B’s evidence which should have attenuated the significance of the similar fact evidence in relation to X and Y. Again, the trial judge comprehensively analyzed the strengths and weaknesses in B’s evidence and accepted it as to the core allegations of sexual assault and the manner in which those assaults were committed.

[9] The admissibility of the similar fact evidence is not in issue on appeal.

[10] We see no basis to intervene. The appellant does not pursue other arguments made in the factum. The appeals from convictions are dismissed.

“G. Pardu J.A.”

“L.B. Roberts J.A.”

“J.A. Thorburn J.A.”