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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Real, 2009 ONCA 913
DATE: 20091221
DOCKET: C48629
COURT OF APPEAL FOR ONTARIO
Doherty, MacPherson and Armstrong JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Mark Real
Appellant
Dena Bonnet, for the appellant
Joseph Di Luca, for the respondent
Heard and released orally: December 18, 2009
On appeal from the conviction entered by Justice John Murray of the Superior Court of Justice on September 14, 2007.
ENDORSEMENT
[1] The appellant appeals his conviction on two counts of sexual interference by Murray J. on 14 September 2007. The convictions related to four specific incidents of sexual touching of a young girl who lived in the house next to the appellant during a two year period as well other incidents "on numerous unspecified occasions throughout the periods specified in the charges".
[2] The appellant contends that the trial judge erred by failing to consider the implausibility of the complainant's version of events. We disagree. The trial judge carefully reviewed all of the evidence relating to the four specific incidents that formed the core of the case against the appellant. In the end, he believed the testimony of the complainant and, with respect to some of the incidents, the testimony of other witnesses that lent support to her testimony. There was nothing implausible about the complainant's description of the four incidents; the real question was whether the trial judge believed her, which he did.
[3] Counsel focussed on two reasons advanced by the trial judge for rejecting the appellant's evidence. While another trial judge might have accepted these submissions, it was open to the trial judge to evaluate the evidence as he did. Accordingly, we defer to the trial judge on this point.
[4] The appellant submits that the trial judge applied a harsher standard of scrutiny to the defence evidence as compared to the Crown evidence. We do not accept this submission. In our view, the trial judge treated the evidence of all of the witnesses reasonably and applied the same level of scrutiny to all of the evidence.
[5] The appeal is dismissed.
"Doherty J.A."
"J.C. MacPherson J.A."
"Robert P. Armstrong J.A."