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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15.
CITATION: R. v. Morgan, 2007 ONCA 690
DATE: 20071011
DOCKET: C45349
COURT OF APPEAL FOR ONTARIO
WEILER, MACPHERSON and ROULEAU JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
DEVON MORGAN
Appellant
Christopher D. Hicks for the appellant
Roger Shallow for the respondent
Heard and released orally: October 3, 2007
On appeal from the conviction entered on December 14, 2005, and the sentence imposed on April 21, 2006, by Justice Michael Z. Charbonneau of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
[1] The appellant is appealing from his conviction respecting one count of sexual assault on December 14, 2005 and his sentence of 12 months in provincial jail.
[2] The appellant alleges that the reasons of the trial judge disclose numerous errors on his part. In summary the appellant alleges that: the trial judge failed to adequately address the contradictions in the complainant’s own evidence and to resolve them; failed to address inconsistencies between the complainant’s evidence and that of the mother; failed to give proper reasons to justify his credibility findings; failed to adequately explain his rejection of the appellant’s evidence and went outside the ambit of the evidence and engaged in speculation.
[3] We disagree. The reasons adequately set out the basis for the trial judge’s conclusions, dealt with the core of the testimony of all three witnesses, explained his credibility findings, and did all of this with sufficient specificity to comply with cases like R. v. Sheppard, 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.) and R. v. Maharaj (2004), 186 C.C.C. (3d) 247 (Ont. C.A.). The appeal as to conviction is dismissed.
[4] With respect to sentence, the sentence imposed was not clearly excessive, manifestly unfit or plainly unreasonable. The appellant does not allege any error in law or principle by the judge. Indeed, the sentence is in conformity with many of the decisions of this court to the effect that a breach of trust and sexual assault involving minor children will almost always result in a jail sentence. While leave to appeal sentence is granted the appeal as to sentence is also dismissed.
“Karen M. Weiler J.A.”
“J.C. MacPherson J.A.”
“Paul S. Rouleau J.A.”