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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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

Court File and Parties

CITATION: R. v. S.B., 2007 ONCA 532

DATE: 20070716

DOCKET: C43789

COURT OF APPEAL FOR ONTARIO

ARMSTRONG, JURIANSZ and LAFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

S.B.

Appellant

John H. Hale for the appellant

Howard Leibovich for the respondent

Heard: June 22, 2007

On appeal from the judgment of Justice Michel Charbonneau of the Superior Court of Justice dated June 30, 2005.

ENDORSEMENT

[1] The appellant was convicted of sexual interference, sexual exploitation and sexual assault upon his daughter. The only issue at trial was credibility. The trial judge concluded that he disbelieved the appellant and found that his testimony did not raise a reasonable doubt. He found that the complainant’s testimony established that the appellant had frequently touched her for sexual purpose with his hands, fondled her breasts, touched her vagina and digitally penetrated her. However, because of significant discrepancies in the complainant’s accounts of the events given before and at trial, the trial judge was not convinced beyond a reasonable doubt by her testimony that sexual intercourse occurred or that she was tied up on one occasion.

[2] In explaining why he disbelieved the appellant, the trial judge explained “[the appellant] testified that [the complainant] liked to show herself naked and regularly failed to close her bathroom door. He obviously testified to this fact in order to lead an attack against [the complainant’s] character.” The trial judge indicated that this evidence had no relevance to the real issue before the court, and therefore he concluded the appellant’s motivation in giving it was suspect. Secondly, he stated that the appellant’s testimony “was contradicted on this point by both his parents and by his son…who testified that they never observed nor had knowledge of conduct of this nature on the part of [the complainant].”

[3] In our view, the trial judge’s analysis suffers from both errors of fact and principle. The appellant’s mother did, in fact, indicate she had knowledge of such behaviour on the part of the complainant. Moreover, the record does not support the characterization of the appellant’s testimony as leading a calculated attack on the complainant’s character.

[4] The appellant, in his testimony in chief, described the complainant only in positive terms. This particular evidence was elicited by the Crown in cross-examination. While it may well have had little relevance, the Crown attorney asked the appellant to give an account of the occasions on which he had seen the complainant naked after her eleventh birthday. The appellant provided factual and un-embellished answers to the questions he was asked. His mother confirmed that he had earlier commented on such behaviour by the complainant.

[5] In addition, we are of the view that the trial judge placed undue weight on the appellant’s testimony that he took his daughter with him alone to Wal-Mart’s, Harvey’s and other public places. While there was ample evidence that the appellant had the opportunity to commit the offences, the use of this particular testimony to contradict his claim he was rarely alone with her is overreaching.

[6] When these elements are removed from the trial judge’s analysis it is not apparent that he, nevertheless, would have reached the conclusion that the appellant’s testimony failed to raise a reasonable doubt in his mind. Therefore, we allow the appeal, set aside the convictions and order a new trial.

“R.P. Armstrong J.A.”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”