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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Antonatos, 2009 ONCA 884
DATE: 20091210
DOCKET: C49789
COURT OF APPEAL FOR ONTARIO
Goudge, Rouleau and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Gideon Antonatos
Appellant
Howard L. Krongold, for the appellant
Peter Scrutton, for the respondent
Heard: December 7, 2009
On appeal from the conviction entered on July 9, 2008, by Justice Charles T. Hackland of the Superior Court of Justice.
APPEAL BOOK ENDORSEMENT
[1] The appellant’s primary argument in this court is that the trial judge’s reasons are inadequate.
[2] We do not agree. The trial judge focused on and grappled with the central issue before him, namely whether the Crown had established beyond a reasonable doubt the absence of consent by the complainant. In doing so, the trial judge did not misapprehend any part of the evidence. He was alive to the gaps and inconsistencies in the complainant’s evidence, but he accepted her evidence that, apart from the portion of the episode that she could not remember at all, she did not consent. He also accepted the expert evidence that she had likely been subjected to forced sexual intercourse and the descriptions of her emotionally distraught state immediately thereafter. All this was open to him on this record, and sustains his ultimate conclusion.
[3] The appellant argues that the trial judge failed to explain or resolve certain conflicts in the evidence. First, he raises the complainant’s evidence concerning her vaginal bleeding and pain as being inconsistent with the expert opinion referred to above. In our view the trial judge clearly accepted that professional opinion on what is essentially a medical issue, namely whether the blood and the pain the doctor observed made it more likely than not that she had been sexually assaulted. That was entirely open to the trial judge to do. Then the appellant points to contradictions in the complainant’s recounting of the sequence of events, whether the complainant was smiling while in the building or not, and how she tried to leave. In our view the trial judge was alive to the various contradictions in the evidence, and none of those pointed to by the appellant appears to underpin his reasoning. A trial judge need not address every conflict in the evidence however peripheral.
[4] In summary, we are of the view that the reasons of the trial judge are entirely sufficient for their purpose and that this argument fails.
[5] The appellant also argues that the verdict is unreasonable. Suffice it to say that there was ample evidence on which a reasonable trier of fact could convict. This argument must also fail.
[6] The appeal is therefore dismissed.