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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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: 20061003

DOCKET: C43136

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – D.D. (Appellant)

BEFORE:

MOLDAVER, GOUDGE AND SHARPE JJ.A.

COUNSEL:

Paul Calarco

for the appellant

Leslie Paine

for the Crown respondent

HEARD & ENDORSED:

September 28, 2006

On appeal from the conviction entered by Justice Alan C.R. Whitten of the Superior Court of Justice dated December 10, 2004 and from the sentence imposed by Justice Whitten dated February 10, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant raises 4 arguments on the similar fact issue.

[2] First he says the charge inadequately excluded the uncharged conduct from consideration as similar fact. We disagree. While the trial judge did not explicitly exclude the uncharged conduct, he very clearly defined the conduct that the jury could consider as similar fact. They would have been in no doubt about what they could and could not consider as similar fact.

[3] Second, he says the trial judge insufficiently identified the issue to which the similar fact went by calling it context. Again we disagree. The trial judge focussed the jury on the particular circumstances in which the appellant was alleged to have committed these assaults. The similar fact evidence spoke directly to that issue.

[4] Thirdly, he raises similarity. In our view the circumstances here of the two sets of complaints, beginning with the father-daughter relationship, but including the other specifics put to the jury by the trial judge, were more than enough to make the possibility of coincidence very slight.

[5] Finally, he argues prejudice. The trial judge carefully charged as to propensity. Moreover, it was pen to him to conclude the probative prejudicial balance as he did.

[6] We therefore find no error as to similar fact. That being so, it is essentially conceded that the severance ruling must stand.

[7] Finally, as to sentence, these were serious charges. We can see no error in principle and the sentence imposed was clearly within the range.

[8] The appeal must be dismissed.