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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. E.W.T., 2009 ONCA 558
DATE: 20090708
DOCKET: C48713
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., MacPherson and Cronk JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
E. W. T.
Applicant/Appellant
Nicholas A. Xynnis, for the applicant/appellant
Craig Harper, for the respondent
Heard: July 6, 2009
On appeal from the convictions entered by Justice M. Rocheleau of the Ontario Court of Justice, on September 20, 2007.
APPEAL BOOK ENDORSEMENT
[1] The appellant appeals his convictions on three counts of threatening and one count each of sexual assault and assault.
[2] The appellant argues that the trial judge erred by failing to explain in her reasons why she rejected the appellant’s evidence regarding the two 2007 threatening offences, in particular, the appellant’s denial of the threats at issue. The appellant also submits that the trial judge erred by failing to conduct the analysis mandated by R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26 (S.C.C.) in respect of the 2007 threatening charges.
[3] We disagree. Although the trial judge’s reasons for convicting the appellant on the 2007 threatening offences are brief and in some respects conclusory, read as a whole the reasons do indicate that the trial judge evaluated all the evidence bearing on these charges. It is clear from the reasons that the trial judge viewed the complainant’s version of events as having been corroborated by the evidence of three independent witnesses whose credibility was not successfully challenged. The trial judge’s references to this evidence reveal the route she took in concluding that the Crown had discharged its burden to prove the appellant’s culpability on the 2007 threatening charges.
[4] We also reject the appellant’s contention that the trial judge failed to consider and apply the principles outlined in R. v. W.(D.) in her consideration of the evidence relating to the 2007 threatening charges. While the trial judge referred to R. v. W.(D.) in the context of the historical offences, rather than the 2007 threatening offences, she was clearly alert to the R. v. W.(D.) principles. We are not persuaded, in these circumstances, that the trial judge ignored R. v. W.(D.) when evaluating the evidence on the 2007 threatening charges. It is implicit in the trial judge’s comments that she rejected the appellant’s evidence and concluded that it did not raise a reasonable doubt.
[5] With respect to the appellant’s convictions on the remaining three historical offences, we see no error in the trial judge’s reasoning. She considered and properly applied R. v. W.(D.) to those offences and made specific credibility findings regarding the complainant and the appellant that were open to her on the evidence. There is no basis to challenge her decision on these charges.
[6] Accordingly, the appellant’s conviction appeal is dismissed. We note that his sentence appeal has been abandoned.