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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court File and Parties

CITATION: R. v. L. W., 2009 ONCA 123

DATE: 20090209

DOCKET: C47244

COURT OF APPEAL FOR ONTARIO

Doherty, Simmons and Gillese JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

L. W.

Applicant/ Appellant

Theodore Sarantis, for the appellant

Amy Alyea, for the respondent

Heard: February 6, 2009

On appeal from the conviction entered on January 25, 2007, and the sentence imposed on February 15, 2007, by Justice David Salmers of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellant was charged with offences relating to improper sexual conduct in relation to his four step-granddaughters. He was convicted of sexual assault, invitation to sexual touching and sexual interference in respect of two of the complainants and acquitted in relation to the other two. The trial began in front of a jury but there was a re-election to a judge-alone trial.

[2] The appellant was sentenced to a global sentence of 54 months which, after receiving 46 months credit for pre-sentence custody, resulted in a further sentence of eight months’ imprisonment followed by three years’ probation. The appellant appeals conviction and seeks leave to appeal sentence.

[3] The appellant’s primary contention is that the trial judge erred in his treatment of the complainants’ evidence, largely in failing to deal thoroughly with the possibility of tainting or collusion. We see nothing in this argument. The trial judge gave excellent, thoughtful, detailed reasons and paid specific attention to the possibility of tainting. He properly and fully considered the frailties and inconsistencies that the appellant raises in argument again today. The trial judge made no error in respect of the way in which he dealt with the credibility of the young complainants.

[4] Counsel alleged several other specific errors. They amount to a re-argument of the matters raised at trial. In fact, the trial judge dealt with each and every one of these matters in his reasons. He fully and accurately reviewed the evidence in respect of each of those issues. His findings are reasonable and fully supported by the evidence. We see no basis on which to interfere.

[5] As for the sentence appeal, we reject the suggestion that the sentencing judge punished the appellant because he had shown no remorse for the offences. Again, we see nothing in this argument.

[6] Accordingly, the appeal against conviction is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.