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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Curtis, 2012 ONCA 490

DATE: 20120711

DOCKET: C53530

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Albert Curtis

Appellant

Brian H. Greenspan and Jill Makepeace, for the appellant

Robert Gattrell, for the respondent

Heard: July 5, 2012

On appeal from the conviction entered on February 16, 2011 by Justice Bryan Shaughnessy of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant, Albert Curtis, appeals against his conviction of sexually assaulting, and sexually interfering with, his 15 year old music student.

[2] Although the appellant raised several grounds of appeal in his factum, during oral argument, the appellant narrowed the focus of his submissions, arguing that the trial judge’s treatment of the evidence of the appellant’s wife, which, if accepted, would have essentially exonerated the appellant, was unfair and illogical, and that the trial judge therefore committed a reversible error. See R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (C.A.), at para. 59.

[3] The assault occurred in the basement of the Curtis’ home in August of 2008.

[4] The evidence of the complainant was that, except for her and the appellant, no one was home when the assault occurred. The assault was noisy and violent. The house was a small, fairly open-concept, side split bungalow. At the time, the appellant and his wife had an infant, no more than 30 days old, two other children, one of whom is autistic, and two dogs. Had anyone been home, they would have heard the assault.

[5] The evidence of the appellant’s wife, Rebecca Curtis, was that during August 2008 she did not leave the house, except in the company of the appellant. Ms. Curtis’ evidence therefore provided the appellant with the equivalent of a complete alibi.

[6] The trial judge rejected Ms. Curtis’ evidence as wholly incredible, unreliable and untrustworthy. He provided several reasons for doing so. These included that Ms. Curtis was “a very troubled woman”. The trial judge wrote:

... I am nevertheless troubled by the degree of secrecy that Albert Curtis and Rebecca Curtis operated in relation to their life together. There is a very troubled relationship wherein she carries a child full-term, apparently without his knowledge, and then takes a taxi to the hospital early in the morning and gives birth to the child in March, 2005, and immediately arranges an adoption from the hospital.

Thus, on her own evidence, Ms. Curtis acknowledged that she was capable of deception.

[7] He also found that some of her evidence appeared rehearsed. He concluded that, despite her claim to the contrary, she requires assistance from the appellant to look after her family and was attempting to help her husband in his defence.

[8] In our view, there was an evidentiary basis for the trial judge’s finding that Ms. Curtis was not credible or reliable. The wife had engaged in deceit, sustained subterfuge and bizarre behaviour. In addition to the undisclosed pregnancy, the wife sent an email directly to the complainant when the complainant was only 13 years of age, telling her to “stay the hell away from my husband …”. There was evidence that the police had told the wife of the charges against the appellant, and asked her questions about the complainant, at the time the wife first volunteered the alibi. On the evidence as a whole, the inference drawn by the trial judge that the wife was tailoring her evidence to help her husband was not unreasonable. Given the context, the trial judge did not, in our view, treat Ms. Curtis’ evidence unfairly or subject it to an unreasonably high standard of scrutiny.

[9] We are not persuaded that the trial judge committed a reversible error, and accordingly dismiss the appeal.

“John Laskin J.A.”

“E.A. Cronk J.A.”

“Alexandra Hoy J.A.”