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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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. N.F., 2007 ONCA 37

DATE: 20070123

DOCKET: C44044

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – N. F. (Appellant)

BEFORE:

CATZMAN, MacPHERSON and GILLESE JJ.A.

COUNSEL:

Marc E. Schiffer

for the appellant

Jennifer Woollcombe

for the respondent

HEARD & ENDORSED:

January 23, 2007

On appeal from the conviction entered on March 10, 2005, by Justice Janet Wilson of the Superior Court of Justice, sitting without a jury.

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

[1] At the suggestion of crown counsel, defence counsel consenting, a publication ban will be granted in respect of this appeal under s. 486(3) of the Criminal Code.

[2] The appellant appeals his conviction on two charges of sexual assault. The charges related to assaults on two very young cousins in their home, where the appellant also lived for several years.

[3] The appellant appeals on two grounds. First, he asserts that the trial judge did not properly deal with the inconsistencies of the two young complainants’ testimony. We disagree. The trial judge considered the complainants’ testimony in some detail. She made one error – a reference to the complainants’ testimony at the preliminary inquiry (in fact, they did not testify) – but, on a fair reading of her lengthy reasons, this mistake does not diminish her strong finding that the complainants were credible witnesses.

[4] The second ground of appeal is that the trial judge erred in relying on the evidence of Karla Wentzel, a nurse practitioner, on the issue of the causes of the female complainant’s continuing infection with chlamydia, a sexually transmitted disease. The problem with this argument is that, even if reliance on Ms. Wentzel’s testimony does not support the trial judge’s conclusion on this issue, there is other evidence – not to mention common sense – establishing that it was much more likely that the complainant suffered from one continuing infection, not two different infections. The trial judge referred to the protective environment in the family home. It is almost impossible to conceive that two people assaulted the female complainant within weeks of each other. Given this, there was abundant evidence that it was the appellant who assaulted both complainants.

[5] The appeal is dismissed.