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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Semple, 2015 ONCA 562

DATE: 20150728

DOCKET: C55318

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bradley Semple

Appellant

Richard Posner, for the appellant

John Patton, for the respondent

Heard: July 24, 2015

On appeal from the conviction entered by Justice Stong of the Superior Court of Justice, sitting with a jury, dated October 6, 2011.

APPEAL BOOK ENDORSEMENT

[1] The impugned comment in closing by the Crown, while to some extent understandable in light of the defence closing, was inappropriate and should not have been made.

[2] However, placed in the context of the entire trial, especially the trial judge’s instructions, we cannot say that there is any significant risk that the comment may have improperly impacted on the jury’s deliberations and resulted in a miscarriage of justice.

[3] The trial judge wrongly told the jury that “there is a presumption in law that a witness comes to court to tell his or her honest recollections”. There is no such presumption. Indeed, as the trial judge told the jury the assessment of the witnesses’ credibility and reliability can only be made after a consideration of a variety of factors. The trial judge identified those factors at some length.

[4] Both the appellant and the complainant testified. For the reasons identified in R. v. Luciano (2011), 2011 ONCA 89, 267 C.C.C. (3d) 16 at paras. 130-37, it is difficult to see how the “presumption” instruction could have prejudiced the appellant. In any event, we are confident that in making its assessment of the witnesses, the jury did not seize on a single sentence uttered by the trial judge, but rather made its assessment in light of all of the relevant considerations identified by the trial judge.

[5] Counsel for the appellant did not press the other two grounds set out in his factum. We think he was wise in not doing so. We see no merit in either.

[6] The appeal is dismissed.