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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. D.L., 2014 ONCA 208

DATE: 20140319

DOCKET: C55640

Sharpe, Gillese and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.L.

(Applicant/Appellant)

Richard Litkowski, for the appellant

Jennifer Mannen, for the respondent

Heard & released orally: March 12, 2014

On appeal from the conviction entered by Justice Christopher Corkery of the Superior Court of Justice, dated July 9, 2012.

ENDORSEMENT

[1] This is an appeal from convictions for historical sexual assault and sexual interference.

[2] The appellant submits that the trial judge erred in his approach with respect to contradictions between the complainant and her mother as to disclosure and second, that the trial judge failed to analyse and reconcile other inconsistencies in the complainant’s account. The third ground regarding the use of evidence of alleged prior discredible conduct was not pursued in oral argument.

[3] The complainant’s mother testified that the complainant had disclosed one of the incidents of alleged abuse to her several years after it occurred and not long before the appellant’s arrest. The complainant denied that she had done so.

[4] We do not agree that the trial judge erred in the way he dealt with this contradiction between the complainant and her mother.

[5] He concluded that the contradiction did not compromise the complainant’s credibility or reliability, essentially for two reasons:

1. If the disclosure did occur, it would be consistent with the incident of sexual assault having occurred; and

2. The contradiction could readily be explained by the context, namely, a complainant who was reluctant to come forward and who had wished to put the entire matter behind her.

[6] In our view, the first reason did not amount to using the complainant’s prior consistent statement to bolster her credibility: the trial judge was simply observing that there was no incentive for the complainant to falsely deny the disclosure as, if she did disclose, it would be consistent with her trial evidence. The second reason led the trial judge to conclude that the complainant may have suppressed the disclosure rather than lied about it.

[7] Nor do we agree that the trial judge ignored or failed to give scrutiny to other inconsistencies. His reasons reveal that he was alive to those inconsistencies and that he did carefully scrutinize them. He properly considered those inconsistencies and viewed them in the light of the fact that these were historic allegations involving a young person who, as an adult, wanted to put the entire matter behind her.

[8] We add that there was some independent evidence to corroborate the complainant’s story.

[9] Accordingly, despite the very able argument of Mr. Litkowski, the appeal is dismissed.

“Robert J. Sharpe J.A.”

“E.E. Gillese J.A.”

“Paul Rouleau J.A.”