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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..
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. Galati, 2016 ONCA 423
DATE: 20160531
DOCKET: C61355
Watt, Tulloch and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Giuseppe Galati
Appellant
Giuseppe Galati, acting in person
Richard Litkowski, duty counsel
Craig Harper, for the respondent
Heard and released orally: May 09, 2016
On appeal from the conviction entered on November 12, 2015 and the sentence imposed on November 12, 2015 by Justice David S. Rose of the Ontario Court of Justice.
ENDORSEMENT
[1] The appellant appeals his convictions of assault, threatening and breach of probation and the sentences imposed after a trial before a judge sitting alone.
[2] The appeal against conviction is grounded on alleged errors made by the trial judge in admitting two out-of-court statements made by the complainant who testified at trial. The submission is that the trial judge failed to consider or adequately consider several factors said to relate to threshold reliability. Those factors include:
i. the complainant’s drug use at times reasonably proximate to the making of the statements;
ii. the presence/absence of a motive to fabricate;
iii. the complainant’s general capacity for deceit; and
iv. the lack of a full opportunity to cross-examine the complainant at trial.
[3] In our view, the trial judge was alive to each of these issues and properly concluded that the reliability requirement had been met. Among other things, we note that on each interview, the complainant was asked and denied then current drug use. Her responses to the questions asked belie any such influence. The suggestions emerged at trial when she repeatedly distanced herself from the statements. Each statement contains repeated admonitions about the consequences of lying and the need to provide truthful answers. There could be no realistic claim of lack of full opportunity to cross-examine the complainant at trial. Indeed, as it turned out, the complainant was a pliable witness ready to respond favourably to most assertions put by defence counsel.
[4] We are not persuaded that the sentence imposed reflects any reversible error.
[5] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed.
“David Watt J.A.”
“M. Tulloch J.A.”
“Grant Huscroft J.A.”