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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
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. 205, c. 32, s. 15.
CITATION: R. v. House, 2010 ONCA 298
DATE: 20100427
DOCKET: C49664
COURT OF APPEAL FOR ONTARIO
Feldman, Simmons and Epstein JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Evan Lloyd House
Appellant
Martin Kerbel Q.C., for the appellant
Stacey D. Young, for the respondent
Heard and released orally: April 15, 2010
On Appeal from conviction by Justice Thomas A. Heeney of the Superior Court of Justice dated September 25, 2008 and sentence imposed dated November 20, 2008.
ENDORSEMENT
[1] The appellant appeals his convictions of three counts of sexual assault and one count of sexual touching. He also appeals his sentence of 15 months in the reformatory and 2 years probation. There are three grounds of appeal against conviction.
[2] First, in respect of the count involving K.K., the appellant submits that the trial judge erred in his conclusion that the massage the appellant had the complainant perform on his upper leg area near the groin was for a sexual purpose. We reject this submission. The trial judge gave full reasons for his conclusion and took into account all of the evidence before him. He made no error in so doing. The evidence was more than sufficient to satisfy the objective test set out in the Supreme Court of Canada decision in R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293 at para. 11.
[3] The second ground relates to the counts involving B.D. The appellant submits that the trial judge erred by concluding without direct evidence that the appellant would have had access to the Yonge Street house once he moved from there and his daughter began to live there. In our view, the trial judge made no error in drawing that inference, taking into account B.D.’s evidence about her memory of being in the Yonge Street house several times including in the locked bedroom. There was also evidence that the appellant continued to refer to the Yonge Street address as his own for some purposes.
[4] The appellant also submits that the trial judge erred by looking for reasons to reject the appellant’s evidence. In our view, the trial judge’s reasons were thorough and comprehensive. He properly referred to reasons for his conclusions on credibility and for rejecting the evidence of the appellant. We see no error in his conclusions.
[5] The third ground raised is that the trial judge erred by failing to find that the test of threshold relevance had been met in respect of the counselling records that were sought to be admitted by the appellant. In particular, he asserts that B.D.’s credibility was challenged because she testified that the allegations against the appellant were not discussed in counselling while there was an affidavit from a lawyer at Children’s Aid that referred to a phone call from a counsellor regarding the first counselling session and the reason for it that contradicted B.D.
[6] We reject this submission for three reasons. First, as acknowledged by counsel on the appeal, this argument was not made by counsel at trial. Second, the argument could not have been properly made at trial because the note of the telephone conversation was inadmissible for that purpose. The content of any counselling records cannot be disclosed without a court order. Third, the trial judge gave careful and full reasons as well as case authority for his decision not to review the records. We see no error in his approach.
[7] Finally, the appellant submits that the trial judge erred in imposing a 15-month custodial sentence in part for specific deterrence when he had already said in the context of rejecting a conditional sentence that the appellant would not be a danger in the community. We do not agree that this reflects an inconsistency in reasoning. Specific deterrence is generally a factor in sentencing in most cases. In any event, in our view, the sentence imposed was at the low end of the range given the circumstances.
[8] The appeal is dismissed.
Signed: ‘K. Feldman J.A.”
“Janet Simmons J.A.”
“G. J. Epstein J.A.”