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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. M.E.N., 2014 ONCA 69

DATE: 20140129

DOCKET: C55479

Feldman, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. E. N.

Appellant

Michael Davies, for the appellant

Dena Bonnet, for the respondent

Heard: January 17, 2014

On appeal from the conviction entered on April 7, 2012 by Justice Hugh L. Fraser of the Ontario Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] The appellant was convicted of voyeurism and extortion arising out of sexual relationship arranged on the internet. The appellant raises two grounds of appeal.

[2] The first is that the trial judge did not adequately address in his reasons the issue of credibility. In particular he did not address some alleged inconsistencies in the complainant’s statement, emails and conduct. We reject this argument. In our view the trial judge adequately addressed the issue of credibility. A trial judge does not need to resolve every alleged inconsistency in a witness or party’s statement and conduct.

[3] The second argument arises out of the meaning of the word “surreptitiously” in s. 162, the voyeurism offence section of the Code. The appellant argues that that word includes an element of mens rea, that is, the person must intend that the victim not know that he or she is being observed or photographed. The appellant argues that the trial judge’s finding on page 17 of the reasons is equivocal as to whether it includes intent as part of the meaning. The trial judge stated:

On the basis on the evidence that I accept, I find that the accused took the video in a surreptitious manner by setting up his iPhone and placing it in a room in a manner in which it could record the complainant putting her clothes on when she emerged from the shower without being aware that her actions were being recorded.

[4] Assuming, without deciding, that the word “surreptitiously” does include intent as part of its meaning, in our view the trial judge found that the appellant intended that the complainant not be aware that she was being photographed.

[5] We do not give effect to this ground.

[6] The appeal is therefore dismissed.