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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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

Date: 2017-02-16

Docket: C60504

Panel: Hoy A.C.J.O., Doherty and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

D.C. Appellant

Counsel

Timothy E. Breen, for the appellant

Peter Fraser, for the respondent

Heard and released orally: February 9, 2017

On appeal from: the conviction entered on January 6, 2015 by Justice Bonnie J. Wein of the Superior Court of Justice.

Endorsement

[1] The appellant was convicted of multiple offences related to sexual acts with his step-sister, 10 years his junior. The appellant began with fondling over the complainant's clothing when she was just six years old, and had proceeded to full intercourse with the complainant on a regular basis by the time the complainant was 10 or 11 years old. The complainant, over time, developed a romantic attachment to the appellant, which ended when the complainant was 19, shortly after the appellant impregnated her. The appellant admitted the sexual relationship. He insisted, however, that it did not begin until the complainant had turned 16, which evidence the trial judge rejected.

[2] The trial judge found the appellant to have been in a position of trust over the complainant, who had been particularly vulnerable as the youngest in a large, recently blended family. She was desperate for love and attention, and the appellant exploited this vulnerability for his sexual gratification. The offences for which the appellant was convicted correspond primarily to sexual acts that occurred over the period of six years between the appellant turning 18 and the complainant turning 14.

[3] The appellant advances two grounds of appeal. First, the trial judge's conduct of the trial is said to have raised an apprehension of bias against the appellant. The appellant points to four allegedly improper interventions by the trial judge:

1. interjections in defence counsel's cross-examinations;
2. interventions in the examination of witnesses so as to minimize inconsistencies;
3. assuming control of the prosecution's examination of two witnesses; and
4. questioning the appellant as to whether he had been drinking at lunch recess.

[4] We reject as without merit the argument that the trial judge's interventions gave rise to a reasonable apprehension of bias.

[5] Her interjections occurred during questioning by the Crown and by the defence and were intended to:

1. insure that procedural and evidentiary rules were followed;
2. clarify questions asked by counsel;
3. clarify answers; and
4. move the trial forward in an orderly fashion when questioning had bogged down on a collateral matter.

[6] None of the interjections support the argument that the trial judge took over the Crown's case. At worst, the interventions by the trial judge during the examination of one somewhat difficult Crown witness suggested that she became mildly frustrated with the Crown's difficulty in getting to the relevant evidence. These interjections did not, however, interfere with counsel's ability to fully and fairly put the defence forward. We simply do not read into these interjections the adversarial tone urged by counsel for the appellant. This ground fails.

[7] Similarly with the second ground of appeal - misapprehension of evidence - four alleged errors are raised:

1. failing to address the reliability of the complainant's evidence;
2. failing to consider the effect of the complainant's exaggeration of the frequency of sexual activity;
3. failing to consider the animus of one of the witnesses against the appellant; and
4. failing to address the improbability that such activity could go undetected in a crowded household over many years.

[8] We are not persuaded that the trial judge misapprehended the evidence. In our view, the appellant essentially asks us to retry this case. There is no basis to interfere with the trial judge's findings of fact. Moreover, a misapprehension of evidence is not a reviewable error unless the error played an essential part not just in the narrative of the judgment but also in the reasoning process that resulted in a conviction: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Morrissey (1995), 97 C.C.C. (3d) 193, at p. 221.

[9] The appellant has not demonstrated how what he seeks to characterize as erroneous factual findings played an essential role in the trial judge's reasoning process that resulted in the conviction.

[10] The appeal is dismissed.

"Alexandra Hoy A.C.J.O."

"Doherty J.A."

"B.W. Miller J.A."