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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. T.A.D., 2012 ONCA 888

Date: 2012-12-17

Docket: C54476

Before: O’Connor A.C.J.O., Laskin and Gillese JJ.A.

Between:

Her Majesty the Queen Respondent

and

T.A.D. Appellant

Counsel: David E. Harris, for the appellant Craig Harper, for the respondent

Heard and released orally: December 13, 2012

On appeal from the convictions entered on September 13, 2011 by Justice D. Little of the Superior Court of Justice.

ENDORSEMENT

[1] We do not agree that the trial judge approached the issue of collusion too narrowly or that he failed to adequately explain why he was satisfied that there was no tainting of D.’s complaint. The trial judge was alive to the fact D. overheard her stepmother’s recount of B.’s complaint. He referred to that in his ruling on the similar fact evidence and in his reasons for judgment. Nothing more was required.

[2] The trial judge did not specifically address defence counsel’s submission that the appellant knew that B. was likely to complain to her mother about any abuse. However, in light of the trial judge’s reasons for judgment, we do not consider that this argument could have had an effect on the conclusion he reached.

[3] Finally, we accept that the two-year delay prior to B. making the videotaped statement is lengthy. However, given that there was a reason for the delayed disclosure, we cannot say that the trial judge unreasonably exercised his discretion in admitting the videotape: see R. v. S. (P.) (2000), 144 C.C.C. (3d) 120 (Ont. C.A.) at paras. 69-75.

[4] The appeal is dismissed.

“D. O’Connor A.C.J.O.”

“John I. Laskin J.A.”

“E.E. Gillese J.A.”