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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. J.W.J., 2009 ONCA 791
DATE: 20091110
DOCKET: C49565
COURT OF APPEAL FOR ONTARIO
Feldman, Blair and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
J. W. J.
Appellant
Dean D. Paquette, for the appellant
Karen Papadopoulos, for the respondent
Heard and released orally: October 30, 2009
On appeal from the convictions entered by Justice A.C.R. Whitten of the Superior Court of Justice, dated June 27, 2008.
ENDORSEMENT
[1] The appellant raises three arguments on his appeal from conviction of two counts of sexual assault.
[2] The appellant says that the trial judge relied on evidence of the nature of the relationship between the complainant’s sister and the appellant in assessing the credibility of the appellant’s testimony and in finding it unreliable.
[3] The trial judge dismissed an application to admit evidence of the relationship between the complainant’s sister and the appellant as evidence of similar acts. The nature of the relationship between the appellant and the complainant’s sister was admitted, however, to a very limited extent: to assist in the unfolding of the narrative of the disclosure by the complainant of the conduct that gave rise to the prosecution. The appellant, in giving evidence, denied the sexual nature of his relationship with the complainant’s sister and took the position that it was purely platonic. In our view, it was open to the trial judge to use the appellant’s denial of the nature of this relationship as a factor to be taken into account in assessing his credibility as a witness in the proceedings.
[4] The appellant further argued that the trial judge erred in applying a different level of scrutiny to the evidence of the two principal witnesses, the complainant and the appellant, treating as explicable or inconsequential inconsistencies in the evidence of the former, but those of the latter as telling against and undermining his credibility.
[5] We do not agree. Neither the reasons of the trial judge nor the record as a whole can reasonably support this conclusion. It is well settled by prior decisions of this court including but, not only, R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480, at para. 49, and R. v. T.(T.), 2009 ONCA 613, [2009] O.J. No. 3388, at para. 31, that it is not enough to show that a different trial judge could have reached a different credibility assessment, that the trial judge failed to say something he could have said in assessing the credibility of the witnesses, or that the trial judge failed to expressly set out legal principles relevant to credibility assessment. In this case, nothing that was said or left unsaid demonstrates that any such differential standard was applied to the evidence of the two principal witnesses.
[6] Finally, we are not satisfied that the trial judge reversed the onus of proof, shifting it to the appellant, or that he misapplied the familiar principles expressed in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
[7] In the result, the appeal from conviction is dismissed.
“K. Feldman J.A.”
“R. A. Blair J.A.”
“David Watt J.A.”