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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. J.E., 2009 ONCA 45

DATE: 20090119

DOCKET: C47406

COURT OF APPEAL FOR ONTARIO

Moldaver, Borins and Blair JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

J. E.

Appellant

Timothy E. Breen, for the appellant

Greg Skerkowski, for the respondent

Heard and released orally: January 6, 2009

On appeal from conviction by Justice A. Stong of the Superior Court of Justice dated August 21, 2006 and sentence imposed dated November 7, 2006.

ENDORSEMENT

[1] While we have some reservations about the explanation the trial judge provided for resolving the inconsistencies in the complainant’s evidence about the part of the appellant’s body that touched her and whether or not she saw it, at the end of the day, the trial judge recognized that there was evidence confirming her account. In particular, he noted the drawings of the appellant’s genitalia that the complainant made not only in her first interview with the police but again during her examination in-chief at trial. At p. 10 of his reasons, the trial judge said as follows:

For example, although it was not until the trial that she referred to the concerned part of her anatomy as “private part”, it was in conversation with Detective Sherry Span at the very outset that she was able to draw pictures not only indicating the area of her anatomy affected by Engel’s actions but also, the area of his anatomy concerned. There is no evidence to suggest that she learned how to draw Mr. Engel’s “private part” but from the experience she testified she had with him.

[2] The trial judge directed his mind to all of the relevant issues and in our view, his decision is entitled to deference. In this regard, we note the well-accepted proposition that a lurking doubt is insufficient to warrant appellate intervention.

[3] As for the second ground of appeal, we are not satisfied that the Crown split its case by failing to introduce as part of its case the statements the appellant provided to the police. The statements were found to be voluntary, the appellant was aware of them and the Crown made it clear that it might use them in cross-examination should the appellant give evidence. The questioning arose as a result of the position the appellant took in his examination in-chief and the trial judge used the evidence solely for the purpose of assessing his credibility. Accordingly, we would not give effect to this ground of appeal.

[4] In the result the appeal from conviction is dismissed.

Signed: “M.J. Moldaver J.A.”

“S. Borins J.A.”

“R. A. Blair J.A.”