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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29.

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. Quesnelle, 2015 ONCA 554

DATE: 20150727

DOCKET: C58099

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Louis Quesnelle

Appellant

Mark C. Halfyard and Breana Vandebeek, for the appellant

Kevin Rawluk, for the respondent

Heard: July 21, 2015

On appeal from the conviction entered by Justice Mulligan of the Superior Court of Justice, dated July 4, 2013.

APPEAL BOOK ENDORSEMENT

[1] We do not agree that the trial judge erred in failing to expressly refer to some of the inconsistencies between the complainant’s trial evidence and his statement or preliminary inquiry evidence. These inconsistencies related to a few of the many incidents of abuse described by the complainant and were in the main peripheral to the central allegations.

[2] The trial judge was alive to the Vetrovec-like frailties in the complainant’s evidence and considered those problems. He was not required to articulate a Vetrovec-type caution.

[3] We also do not agree that the trial judge assumed that the complainant had been sexually assaulted in assessing the impact of the complainant’s criminal record on his credibility. Reading the passage as a whole, we read the trial judge as saying that the record and associated alcohol abuse did not automatically render his evidence unworthy of belief. As the trial judge noted “all of the circumstances had to be considered”.

[4] There was evidence that the complainant underwent hypnosis at some point. The issue was not raised. We will not speculate as to what, if any, impact the complainant’s hypnosis may have had on his evidence had the issue been raised.

[5] We agree that the trial judge misapprehended the complainant’s evidence on count 3. In fact, the complainant did not recall the event.

[6] We do not accept the Crown argument that the misapprehension was not material because the trial judge accepted the sister’s evidence. The trial judge accepted her evidence as confirmatory of the complainant’s evidence. On a proper understanding of the evidence, it could not confirm the complainant’s evidence as he gave no evidence about the incident. We cannot say that the sister’s evidence could inevitably have carried the full burden of proof absent any evidence from the complainant. The conviction on count 3 is quashed. The Crown is entitled to a new trial on that count, if so disposed.

[7] We see no reason to interfere with the sentence imposed on the sexual assault charges. Five years was fully justified apart entirely from the alleged assault which gave rise to count 3.

[8] The Crown fairly points out that the complainant was not a “young person” as defined in the Criminal Code. Consequently, count 6 must be quashed and an acquittal entered. That variation has no impact on the sentence.

[9] In the result, the conviction on count 3 is quashed and a new trial ordered. The conviction on count 6 is quashed and an acquittal is entered. The convictions on counts 1, 4 and 5 stand. The total sentence is not altered.