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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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.
CITATION: R. v. D.B., 2007 ONCA 157
DATE: 20070309
DOCKET: C43672
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – D. B. (Appellant)
BEFORE:
LASKIN, LANG and MacFARLAND JJ.A.
COUNSEL:
Christopher Hicks
for the appellant
Grace Choi
for the respondent
HEARD & RELEASED ORALLY:
March 5, 2007
On appeal from the conviction entered on March 5, 2004, and the sentence imposed on March 29, 2004, by Justice Casimir N. Herold of the Superior Court of Justice, sitting without a jury.
E N D O R S E M E N T
[1] This is an appeal from the decision of Herold J. following a five-day trial in which he convicted the appellant of possession of child pornography, sexual interference and sexual assault. After staying the sexual assault conviction, the trial judge sentenced the appellant to two years less a day, to be followed by three years probation, with the added five-year prohibition that the appellant stay away from parks and schools.
[2] The appellant argues that the sexual assault charge should have been stayed as a section 7 Charter violation because the destruction of the videotape prejudiced his ability to make full answer and defence.
[3] We do not agree. In our view, the absence of the videotape did not prejudice the appellant because the police officer’s notes were available and outlined the weaknesses in the videotape. Those weaknesses included concerns about the interviewer asking the child leading questions, the child changing her mind on whether she had been asleep or awake during the assault, and the child indicating twice that some of her information came from her mother.
[4] Since the complainant testified at the preliminary inquiry and at trial, the defence had the opportunity to test both her credibility and her reliability. In his closing submissions at trial, the appellant’s counsel stressed that the videotape was no longer available and that the police notes demonstrated the unreliability of the complainant. In addition, the trial judge specifically reviewed the videotape’s weaknesses in his reasons.
[5] We are not satisfied that there was any prejudice that would warrant a stay. Accordingly, we cannot find that counsel rendered ineffective assistance by not moving for a stay at trial.
[6] The appellant also alleges ineffective assistance of counsel because his trial counsel failed to bring an application for production of the complainant’s counselling records. In our view, there is nothing to support the “likely relevance” necessary to found a claim for production.
[7] The appellant argues that his counsel failed to follow his instructions to put forward a defence that the pornography was planted by his former wife with the collaboration of her sons. On this issue, the trial counsel clearly considered the potential for a defence of fabrication, retained a computer expert to analyse the material and, in our view, wisely concluded that the defence of fabrication had no chance of success. The trial counsel documented his concerns about this defence in a lengthy letter to the appellant.
[8] Moreover, the appellant was present and testified at the trial. When asked to explain the presence of the pornography, he offered no explanation. It would have been evident to the appellant that his counsel was not putting forward this defence. Therefore, we are inclined to the view that the appellant accepted his counsel’s advice not to put forward this defence. In any event, given the lack of merit to the defence, there was no miscarriage of justice caused by the failure to put it forward.
[9] Finally, the appellant argues that the trial judge erred in taking into consideration as a factor on the sexual assault charge that the pornography included images of young girls with the face of his step-daughter as a child transposed onto their bodies. In our view, the trial judge was entitled to consider this evidence in arriving at his verdict.
[10] The appellant has served his period of incarceration. We see no error in the length of probation or in the five-year prohibition order that the appellant stay away from parks and schools.
[11] Accordingly, the appeal is dismissed.
“John Laskin J.A.”
“S. E. Lang J.A.”
“J. MacFarland J.A.”