W A R N I N G

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) or (3) or 486.5(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, 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 satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, 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 necessary for the proper administration of justice.

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.

DATE: 20060608

DOCKET: C43347

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – R. W. (Appellant)

BEFORE:

WEILER, BLAIR and ROULEAU JJ.A.

COUNSEL:

Robert Sheppard

for the appellant

Ms. Grace Choi

for the respondent

HEARD & RELEASED ORALLY:

June 2, 2006

On appeal from the convictions imposed by Justice James M. Donnelly of the Superior Court of Justice dated December 3, 2004.

E N D O R S E M E N T

[1] Robert W. was convicted by a jury, with Justice Donnelly presiding, of three counts of various sexual offences arising from incidents involving his step-daughter while she was between the age of eight and ten. The complainant A.F. was eleven years old at the time of the trial and testified via a closed-circuit television link.

[2] The complainant testified that the appellant committed a series of sexual acts with her ranging from attempted intercourse, to masturbation and fellatio and other acts of sexual touching. She said that this conduct occurred on numerous occasions over an extended period of time.

[3] The appellant places great emphasis on the complainant’s inconsistent testimony with respect to the timing of the last sexual incident – was it in August or in October 2003? Given that significant inconsistency, the appellant argues

(a) that the trial judge erred by failing to refer to that inconsistency, specifically, when charging the jury about how to assess the testimony of a child witness. (He otherwise agrees that the charge was “text-book” in this respect and overall) and

(b) that the verdict was unreasonable because, given this particular inconsistency, no properly instructed jury acting judicially could reasonably have rendered a verdict of guilty.

[4] We do not agree.

[5] The trial judge made no error in his very fair charge with respect to the assessment of the testimony of a child witness. He made the jury well aware that inconsistencies were an important consideration in assessing credibility. Though he did not specifically refer to the “last incident” inconsistency at this point in his charge, he had already referred to it shortly before and he fully and carefully dealt with the defence argument on this point when he later reviewed the position of the defence. The need to consider this inconsistency in the context of the principles to be applied in dealing with child testimony would not have been lost on the jury in our opinion.

[6] Nor can the verdict be said to be unreasonable. There was ample evidence in the complainant’s testimony to support the verdict. There was a note that she gave to her mother saying “Mom, Dad had sex with me”. The incidents were said to have occurred on many occasions over a long period of time.

[7] There was indeed a striking contrast between the child’s evidence about the timing of the last incident at trial and at the preliminary hearing. However, the inconsistency did not relate to any essential element of the offences in question, or to any aspect of the defence raised except as part of the overall assessment of the child’s credibility. It was for the jury to decide the issue of credibility.

[8] Accordingly, the appeal is dismissed.

“K.M. Weiler J.A”

“R.A. Blair J.A.”

“Paul S. Rouleau J.A.”