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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Flaminio, 2010 ONCA 535
DATE: 20100723
DOCKET: C50245
COURT OF APPEAL FOR ONTARIO
Doherty, Gillese and Armstrong JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Peter Flaminio
Appellant
Gregory Lafontaine and Lori Anne Thomas, for the appellant
Stacey D. Young, for the respondent
Heard and orally released: July 20, 2010
On appeal from the conviction entered by Justice Riopelle of the Superior Court of Justice dated January 8, 2009 and the sentence imposed on March 20, 2009.
ENDORSEMENT
[1] This began as an appeal against conviction and sentence. At the outset of oral argument, counsel for the appellant abandoned the sentence appeal.
[2] There are essentially two issues raised on the conviction appeal.
[3] The first arises out the supplementary reasons for judgment given by the trial judge some four days after his oral reasons for judgment. We see no error in the trial judge’s giving of the supplementary reasons for judgment. He did not change anything in those reasons from the reasons given orally and certainly did not purport to correct anything that he may have said in his initial reasons.
[4] The supplementary reasons provided a more detailed review of the evidence and a fuller explanation for the trial judge’s findings of fact, particularly on the harassment charge. With respect to the sexual assault charge, the supplementary reasons were quite repetitive of the oral reasons. We do not agree that he attempted to “bulletproof” his initial oral reasons and protect them from appellate review. In our view, there is no unfairness or perceived unfairness from the supplementary reasons provided in this case.
[5] The second ground of appeal relates to the complainant’s failure to initially disclose to the police the sexual assault allegation and the surrounding circumstances. In her initial complaint, the complainant referred to the allegations underlying the harassment charge and only referred to the sexual assault allegations peripherally in the second interview the next day and then in more detail a couple of weeks later. The trial judge dealt with this non-disclosure issue and reviewed the evidence. He reviewed her explanation for not initially disclosing the sexual assault to the police. It is clear that he accepted her explanation for not making that disclosure. It was open to the trial judge to accept her explanation and once accepted the non-disclosure could not adversely affect her credibility.
[6] The trial judge’s references to the consistency in the description of the sexual assault provided by the complainant on the various occasions in which she recounted those events were not made to suggest that consistency made the complainant more credible, but to answer an argument made by the defence at trial to the effect that the complainant had not told the same story, but had elaborated on her story each time she told it. The trial judge was responding to an argument made by the defence when he commented on the complainant’s consistency in describing the events surrounding the sexual assault.
[7] The conviction appeal is dismissed and the sentence appeal is dismissed as abandoned.
“Doherty J.A.”
“E.E. Gillese J.A.”
“Robert P. Armstrong J.A.”