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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. H.A., 2009 ONCA 438
DATE: 20090527
DOCKET: C48282
COURT OF APPEAL FOR ONTARIO
Doherty, Goudge and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
H. A.
Appellant
David E. Harris, for the appellant
Karen Papadopoulos, for the respondent
Heard and released orally: May 5, 2009
On appeal from the conviction imposed by Justice V. Lampkin of the Ontario Court of Justice dated January 26, 2007 and from the sentence imposed dated January 8, 2008.
By the Court:
[1] The appellant was convicted of sexually assaulting his wife on May 21, 2005. The trial judge was faced with starkly conflicting versions of what happened on that day from the appellant and his wife. His reasons do not expressly indicate the basis upon which he resolved that conflict. Nor do they permit us to infer how he did so.
[2] The trial judge preceded his ultimate conclusion with the finding that, on his own evidence, the appellant has an enormous sexual appetite. However the trial judge does not indicate how, if at all, he used that finding to conclude that the appellant’s evidence was incredible and did not raise a reasonable doubt and that the complainant must be believed beyond a reasonable doubt. The Crown concedes that although the finding may have some relevance, on its own it is not enough to found the trial judge’s conclusion.
[3] Moreover, in our view, the finding itself is based on a misapprehension of the appellant’s own evidence. That evidence cannot fairly be characterized as the trial judge did.
[4] The trial judge also preceded his ultimate conclusion by describing prior events in the sexual relationship between the appellant and his wife. Here too, however, the trial judge offers no indication of how, if at all, he used that evidence to resolve the conflict before him concerning the events of May 21.
[5] In our view, these reasons are so inadequate that proper appellate review is impossible. On that basis alone, the conviction must be set aside.
[6] The appellant contends that if we were to set aside and remove from the fact finding the finding concerning the appellant’s sexual appetite, there would have been an acquittal. We do not agree. Since we do not know how if at all the trial judge used that finding, we cannot tell what he would have done without it.
[7] Finally, the appellant says that the verdict is unreasonable. We do not agree. On this record a reasonable trier could properly convict the appellant.
[8] The appeal is allowed and a new trial is ordered.
RELEASED: May 27, 2009 “DD”
“D. Doherty J.A.”
“S.T. Goudge J.A.”
“Robert Armstrong J.A”