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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. C.C.F., 2014 ONCA 327

DATE: 20140425

DOCKET: C56777

Weiler, Feldman and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.C.F.

Appellant

Constance Baran-Gerez, for the appellant

Matthew Asma, for the respondent

Heard and released orally: April 23, 2014

On appeal from the conviction entered on November 30, 2012 by Justice Geoffrey Griffin of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was charged with one count of sexual assault and one count of sexual interference. The sexual assault charge was conditionally stayed, but he was convicted on the sexual interference charge. He appeals his conviction.

[2] The case turned largely on the evidence given by the complainant, the daughter of the appellant, who was seven years old at the time of the trial. The appellant submits that the trial judge failed to comply with s. 16.1(6) of the Canada Evidence Act, R.S.C. 1985, C. C-5 as amended, enacted as S.C. 2005, c. 32, s. 27, which states:

(6) The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth.

[3] The respondent submits that the trial judge complied with s. 16.1(6) and relies on the following exchange which took place during the inquiry conducted by the trial judge to determine if the complainant was able to understand and respond to questions.

The Court: … Do you know what it is, the difference between the truth and not telling the truth?

Witness: Yep.

The Court: Okay. And it is important to me that you tell me the truth because I have to make decisions. I want to make sure people are telling me the truth. Okay?

Witness: Okay.

[4] The trial judge did not explicitly ask the witness to promise to tell the truth.

[5] No particular words are required to comply with s. 16.1(6) of the Evidence Act, so long as the witness has clearly committed to tell the truth. After the trial judge brought home to the complainant the importance of telling the truth, she said "O.K." Neither counsel raised any objection to the reception of the complainant's evidence on the basis that she had not committed to tell the truth. Thetrial judge recorded in his reasons that she had promised to tell the truth and stated in his reasons that the complainant "appeared to understand the serious and solemn nature of what she was involved with, namely a criminal trial."

[6] The exchange between the trial judge and the complainant was sufficient to comply with s. 16.1(6) of the Evidence Act, because the complaint committed to tell the truth in court.

[7] Accordingly the appeal is dismissed.

"K.M. Weiler J.A."

"K. Feldman J.A."

"E.E. Gillese J.A."