Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 2022-08-25 Docket: C69655

Judges: van Rensburg, Coroza and George JJ.A.

Between:

Her Majesty the Queen Respondent

And

William James Epp Appellant

Counsel: Kenneth W. Golish, for the appellant Kevin Rawluk, for the respondent

Heard and released orally: August 23, 2022

On appeal from: the conviction entered by Justice John A. Desotti of the Superior Court of Justice on January 11, 2021, with reasons reported at 2021 ONSC 234, and the sentence imposed on June 9, 2021, with reasons reported at 2021 ONSC 2901.

Reasons for Decision

[1] The appeal is dismissed.

[2] Two arguments were advanced in this court with respect to the conviction appeal: first, that it was not a reasonable finding from the complainant’s complaint of severe vaginal pain, that there was digital or penile penetration, and second, that the DNA evidence (which is not challenged) is consistent with a reasonable conclusion other than that there was digital or penile penetration.

[3] We do not give effect to these arguments. First, they invite the court to take a compartmentalized approach to the evidence. In this case, there was overwhelming evidence that a sexual assault, including some type of penetration, had occurred. Second, in this case, where the appellant did not testify, it would have been speculative for the trial judge to have concluded, as urged on appeal, that some means other than digital or penile penetration had occurred. In other words, that was not a reasonable inference that was available on the evidence.

[4] As for the sentence appeal, we see no error in the sentence of seven years’ imprisonment in this case that would justify appellate intervention, applying the principles of R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[5] There were a number of aggravating factors that were listed by the trial judge, including the age of the victim (which, contrary to the appellant’s submission, made her a child under s. 718.01 of the Criminal Code, R.S.C. 1985, c. C-46), the age of the appellant, his prior record, and the harm occasioned by the assault.

[6] For these reasons, the conviction appeal is dismissed. Although we grant leave to appeal sentence, the sentence appeal is dismissed.

“K. van Rensburg J.A.”

“S. Coroza J.A.”

“J. George J.A.”