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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court of Appeal for Ontario

Citation: R. v. R.F., 2012 ONCA 419 Date: 2012-06-20 Docket: C49682

Before: MacPherson, Armstrong and Pepall JJ.A.

Between:

Her Majesty the Queen Respondent

and

R. F. Applicant/Appellant

Counsel: Nicholas A. Xynnis, for the appellant Michael Bernstein, for the respondent

Heard: June 15, 2012

On appeal from the conviction entered on March 10, 2008 and the sentence imposed on May 23, 2008 by Justice Guy P. DiTomaso of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant was convicted of 2 counts of break and enter, 1 count of sexual assault and 2 counts of criminal harassment by DiTomaso J. of the Superior Court of Justice on March 10, 2008. He received a global sentence of 4 years. He appeals against his convictions only. He also seeks to admit fresh evidence.

[2] He raises 4 grounds of appeal. Firstly, he submits that the court erred in ordering that counsel be appointed to cross-examine the complainant. Secondly, the appellant submits that there was an appearance of unfairness arising from the respondent’s role in securing counsel to cross-examine the complainant. Thirdly, the appellant submits that his right to counsel was compromised by the compensation ordered for the appointed counsel. Lastly, the appellant submits that the verdicts were unreasonable and the trial judge erred in his assessment of credibility and reliability.

[3] We see no merit in these grounds of appeal. The first three grounds are raised for the first time on this appeal and could have and should have been raised at trial. The charges were laid in January, 2006. Over the course of many months, the appellant repeatedly requested adjournments and advised the court that he intended to and was in the process of retaining counsel for his trial but he never did. As stated by Graham J. of the Superior Court of Justice on September 12, 2007, the appellant presented a number of vague and unconvincing excuses for not having done so.

[4] No objection was taken to the respondent’s application for the appointment of counsel to cross-examine the complainant or the evidence filed in support or the proposed rate of compensation for counsel. The appellant did not express a desire to cross-examine the complainant himself and at trial, the appointed counsel cross-examined the complainant without objection. There is no allegation of incompetence of the appointed counsel. There was an adequate evidentiary basis for the appointment order. In addition to the affidavit filed in support of the application, the presiding judge had the indictment which included two counts of harassment. The court established the rate of compensation to be paid, not the respondent, and there was no appearance of unfairness. The trial record does not disclose any compromise of any right to counsel.

[5] As for the fourth ground of appeal, namely that the verdicts were unreasonable and the trial judge erred in his assessment of credibility and reliability, the trial judge delivered 98 pages of detailed oral reasons. He carefully considered the credibility and reliability of the complainant and believed her evidence. He considered the complainant’s conduct and accepted her explanations for why she did what she did and was satisfied that the respondent had established the appellant’s guilt beyond a reasonable doubt in respect of all counts. We see no error.

[6] The appeal is dismissed.

"J. C. MacPherson J.A." "Robert P. Armstrong J.A." "S. E. Pepall J.A."