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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of: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) 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. Millien, 2007 ONCA 58

DATE: 20070130

DOCKET: C45448

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) – FELIX MILLIEN (Respondent)

BEFORE: CATZMAN, MACPHERSON and GILLESE JJ.A.

COUNSEL: Andrew Cappell for the appellant Catherine Glasister for the respondent

HEARD: January 24, 2007

On appeal from the order of Justice F. Kiteley of the Superior Court of Justice dated March 3, 2006.

E N D O R S E M E N T

[1] The respondent was convicted, in the Ontario Court of Justice, of sexual assault and sexual exploitation of a person with a disability. He was sentenced to six months in custody and two years probation. He appealed against conviction and sentence.

[2] The summary conviction appeal court justice allowed the appeal against conviction and ordered a new trial. She would have dismissed the sentence appeal. The appeal court justice allowed the appeal based on a single phrase in the lengthy reasons of the trial judge. The passage in which this phrase is found reads as follows:

One more telling item of evidence against the accused is the fact that to his knowledge he would have been with Miss Mahabir on the evening in question. He and his wife learned that Miss Mahabir had not been truthful with the authorities on Wednesday, May the 29th. That alerted them to this fact, they chose to say nothing but instead, in my view, played a role in concocting the fabricated letter, that I accept Miss Mahabir did not write willingly [emphasis added].

[3] The appeal court justice held that the phrase meant that the respondent and his wife had failed to go to the police and that the trial judge erred by drawing an advance inference contrary to the respondent’s right to silence.

[4] The Crown applies for leave to appeal the order of the appeal court justice quashing the convictions. For the reasons that follow, we would grant leave and allow the appeal.

[5] The trial judge gave thorough and cogent reasons for accepting the complainant’s account of the events and for rejecting the respondent’s version of what took place. After summarizing the evidence in detail, the trial judge noted that he was struck by the number of “coincidences and internal inconsistencies” in the testimony of the respondent and his wife. He listed numerous grounds for disbelieving the respondent, all of which are firmly grounded in the evidence. He concluded that he did not believe the respondent’s testimony and that it did not raise a reasonable doubt.

[6] In contrast, the trial judge accepted the complainant’s evidence “without hesitation”. He gave a host of detailed, thoughtful reasons for finding her evidence to be credible and believable.

[7] In our view, the appeal court justice misinterpreted the impugned phrase. We begin by noting the position of the impugned passage in the reasons. It follows immediately after a paragraph that reads as follows:

Miss Mahabir’s testimony must certainly be approached carefully. She impressed me as a pathetic witness who was being manoeuvred and engineered into a position of helping the accused given the allegations that he found had been lodged against him.

[8] That is, the impugned passage comes immediately after a description of Ms. Mahabir and her role in the events.

[9] A trial judge’s reasons must be read in context and as a whole. See R. v. Morrissey (1997), 97 C.C.C. (3d) 193 (Ont. C.A.). When read in that context and in light of the evidence that neither the respondent nor his wife challenged Ms. Mahabir when they learned that she had been untruthful with the authorities, when the trial judge noted that the respondent and his wife chose to say nothing, we understand him to be referring to their failure to speak to Ms. Mahabir, not the police.

[10] Assuming that there is ambiguity in the passage, the appeal court justice was bound to interpret the passage in a manner consistent with trial judge’s presumed knowledge of the law (in this case, the accused person’s right to silence) and her failure to do so constitutes reversible error. See Morrissey at p. 204.

[11] In any event, we do not view the trial judge as having drawn an adverse inference from the fact that the respondent and his wife chose to say nothing. Rather, when read in context, the passage shows that the trial judge drew the entirely permissible inference that the respondent and his wife played a role in concocting the fabricated letter and manipulated Ms. Mahabir into helping them attempt to cover up the offences.

[12] The appeal court justice dismissed all the other grounds of appeal raised by the respondent. She made no errors in those determinations.

[13] Accordingly, leave to appeal against conviction granted, the appeal is allowed and the convictions restored.

[14] The respondent has asked that the appeal against sentence be remitted to be heard by a different summary conviction appeal court justice. We do not accede to this request. We see no error in the sentence imposed or in the reasons of the appeal court justice dismissing the appeal against sentence as imposed by the trial judge.

“M. A. Catzman J.A.”

“J. C. MacPherson J.A.”

“E. E. Gillese J.A.”