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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. A.A., 2013 ONCA 466

DATE: 20130709

DOCKET: C56083

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A. A.

Applicant/Appellant

Richard Litkowski, for the appellant

Matthew Asma, for the respondent

Heard: July 4, 2013

On appeal from the conviction entered by Justice Bonnie J. Wein of the Superior Court of Justice, dated March 12, 2002 and from the sentence imposed by Justice Wein dated May 3, 2012.

ENDORSEMENT

[1] On March 12, 2012, at a trial in the Superior Court of Justice in Brampton presided over by Wein J., a jury found the appellant guilty of trafficking a person and of receiving a financial benefit therefrom, contrary to ss. 279.01 and 279.02 of the Criminal Code. The appellant was acquitted of procuring a person to become a prostitute and of exercising control over a person to compel that person to engage in prostitution contrary to sections 212(1)(d) and 212(1)(h) of the Code. The trial judge sentenced the appellant to 27 months less one day imprisonment cumulatively on the two charges of which he was convicted.

[2] The appellant appeals against his convictions on two grounds.

[3] First, the appellant contends that the trial judge failed to give an appropriate Vetrovec warning to the jury respecting the complainant (and only witness).

[4] We disagree. A trial judge’s decision on whether to deliver an unsavoury witness warning to a jury, and the contents of such a warning, are entitled to substantial defence; there is no particular formula: see R. v. Smith, 2009 SCC 5, at para. 16.

[5] At the appellant’s trial, the trial judge raised this issue in her pre-charge discussion with counsel. It was discussed both before and after counsels’ closing addresses. Ultimately, the language of the caution about the complainant’s evidence was accepted by both counsel. Importantly, the trial judge accepted and incorporated a suggestion made by defence counsel. Although the trial judge erred in her formulation of one of the Vetrovec factors – “If you do not find her evidence trustworthy, you should be cautious in basing a conviction on it” – in our view, the language chosen by the trial judge, in co-operation with counsel, on the Vetrovec component of her charge, viewed in light of the charge as a whole, fulfilled its necessary functional purposes.

[6] Second, the appellant submits that the trial judge failed to identify the position of the defence on issues that needed to be resolved by the jury, and failed to relate the evidence to those issues in her jury charge.

[7] We do not accept this submission. This was a very short one-witness trial. The trial judge asked for and received written Crown and defence positions which she would consider for incorporation into her jury charge. Just before she commenced the jury charge, the trial judge said:

Good morning, counsel. I received from both of you or each of you separately your position summaries. I think that’s the first time they’ve ever actually fit on one page each, and they were both very good. I have changed a word or two but they’re essentially as written. Thank you.

The trial judge incorporated the Crown and defence positions into the jury charge.

[8] The defence position was straightforward. It was that the complainant lied and offered examples. This was the defence position and the evidence relating to the position.

[9] The appeal is dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”