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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. J.L., 2016 ONCA 593
DATE: 20160727
DOCKET: C61079
Watt, Pepall and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
J. L.
Appellant
Counsel:
J. L., acting in person
Ingrid Grant, duty counsel
Michael Bernstein, for the respondent
Heard: July 13, 2016
On appeal from the conviction entered on March 26, 2015 and the sentence imposed on August 7, 2015 by Justice Catherine A. Kehoe of the Ontario Court of Justice.
ENDORSEMENT
[1] The appellant appeals his convictions of several sexual offences alleged to have occurred over a period of many years. He also seeks leave to appeal his sentence of imprisonment for a term of six years.
[2] The case for the Crown at trial was that on many occasions over the periods alleged in the informations, the appellant engaged in a variety of sexual misconduct with the complainant amounting to the offences alleged against him.
The Appeal from Conviction
[3] The sole ground of appeal against conviction arises out of the failure of the trial judge to resolve what is said to be an inconsistency between the complainant’s B. (K.G.), statement and her trial testimony concerning whether anyone, in particular her mother and brother, opened the bedroom door when she was being sexually assaulted by the appellant.
[4] In the B. (K.G.) statement, the complainant denied that anyone entered the room while she was being sexually assaulted. In her evidence at trial, when asked whether her mother and brother had walked into the room during any such activity, the complainant responded:
So I’ve been told…They told me that they did.
[5] The appellant says that the failure of the trial judge to resolve this contradiction amounts to a failure to provide adequate reasons for her conclusion of guilt, or a failure properly to apply the third step of W.(D.) to the evidence adduced at trial.
[6] Some context is critical to an appreciation of this claim of error. This is not a case in which a single episode of sexual misconduct is alleged to have occurred. Rather what is alleged to have occurred here was said to be a course of conduct played out repeatedly in different forms in different circumstances over several years. This inconsistency in the complainant’s accounts about her mother and brother’s presence and/or entry into the room did not detract from her overall claim of repeated acts of sexual misconduct. Indeed, the evidence of those witnesses tended to confirm the evidence of the complainant about the nature and circumstances of the sexual activity and where it occurred.
[7] The complainant’s assertion at trial that she had been told by her mother and brother about their presence at the door, as evidence that they were there, was of no evidentiary value for the trial judge.
[8] In assessing the effect of this complaint of error, we also bear in mind that it is not incumbent upon a trial judge to reconcile every inconsistency in a witness’ evidence, even the evidence of an important witness, such as a complainant, at trial. That said, it would have been better had the trial judge done so rather than devoting the overwhelming portion of her reasons to recounting in exquisite detail nearly all the evidence that had been given at trial.
[9] In the end, we are not satisfied this omission renders the reasons insufficient for meaningful appellate review or amounts to a failure to consider whether the evidence that the trial judge accepted, taken as whole, established the guilt of the appellant beyond a reasonable doubt.
The Appeal from Sentence
[10] The appeal against sentence was not pressed. We have nonetheless considered the fitness of the sentence. We are satisfied that the sentence is proportional to the gravity of the offence and the moral blameworthiness of the appellant. We see no basis on which we are entitled to interfere.
Conclusion
[11] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed.
“David Watt J.A.”
“S.E. Pepall J.A.”
“M. Tulloch J.A.”