WARNING

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. B.F., 2011 ONCA 636

DATE: 20111011

DOCKET: C52041

COURT OF APPEAL FOR ONTARIO

Watt, Epstein and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B. F.

Appellant

Peter Copeland and Kevin Tilley, for the appellant

Grace Choi, for the respondent

Heard and released orally: September 29, 2011

On appeal from the convictions entered by Justice Ralph E.W. Carr of the Ontario Court of Justice, dated November 10, 2009, and the sentences imposed by Justice Carr on January 6, 2010.

ENDORSEMENT

[1] The appellant challenges his convictions of sexual assault, sexual interference and breach of probation on several grounds.

[2] The appellant contends that the trial judge convicted him on the basis of a transaction that was different than the transaction that had formed the basis of the prosecution. We do not agree.

[3] The trial judge made an express finding that the appellant intentionally touched the complainant’s vagina in the bathtub. We are not persuaded that the reference to the so called “airplane incident” tainted the findings in relation to those incidents that occurred in the bathtub or caused the appellant any miscarriage of justice. Neither are we persuaded that the trial judge’s reasons are insufficient despite their brevity and organizational confusion. Read in the context of the evidentiary record in this case, we are satisfied that the reasons are adequate to the task demanded of them by the authorities and reflect the core findings necessary for the convictions recorded.

[4] The conviction of breach of probation is another matter. The trial judge did not make a discrete finding concerning the date upon which the sexual interference and assault occurred. It follows, in our view, that in the peculiar circumstances of this case, the conviction of breach of probation was unreasonable and cannot stand.

[5] The respondent agrees that we should enter a stay on the conviction of sexual assault if we affirm the conviction of sexual interference. We agree.

[6] In the result, the appeal from conviction of sexual interference is dismissed. The appeal from conviction of sexual assault is allowed and a stay entered.

[7] The appeal from the conviction of breach of probation on the information charging the sexual offences is allowed and an acquittal entered. We are satisfied that the sentence imposed on the count of breach of probation with which we are concerned was concurrent to the sentence imposed for the sexual offences. The appellant pleaded guilty to several other breach offences contained in a separate information. Those convictions are not before us however, nor are the sentences imposed as a result of those convictions.

“David Watt J.A.”

“G.J. Epstein J.A.”

“Karakatsanis J.A.”```