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:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

Criminal Code, Section 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.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

Criminal Code, Section 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.

Criminal Code, Section 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.

Criminal Code, Section 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.

Criminal Code, Section 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.

Criminal Code, Section 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: 2017-04-26

Docket: C61329

Panel: MacPherson, Simmons and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

J. N-Z. Appellant

Counsel: Matthew R. Gourlay, for the appellant Brett Cohen, for the respondent

Heard: April 18, 2017

On appeal from: The conviction entered by Justice Katherine B. Corrick of the Superior Court of Justice on September 18, 2015, with reasons reported at 2015 ONSC 5795.

Decision

By the Court:

[1] Following a judge alone trial, the appellant was convicted of a number of sexual offences involving a 10-year-old male complainant.

[2] The appellant was a hairdresser and came to the family's home to colour the complainant's mother's hair and also, on occasion, to cut other family members' hair.

[3] The complainant alleged increasing sexual misconduct, which he described as weird behaviour, over three discrete time frames: December 26, 2012 to August 5, 2013; August 6, 2013 (the day the family was preparing to leave on their annual trip to Bosnia); and October 21, 2013 (the date of the complainant's disclosure). According to the complainant, on the last date, the appellant exposed himself to the complainant and tried to have the complainant touch his penis. The complainant then told his mother he did not want the appellant coming over anymore and disclosed the alleged misconduct. On being confronted, the appellant denied any impropriety and waited at the home until the police arrived.

[4] At trial, contrary to his s. 715.1 video statement, in which he said the appellant had not exposed himself prior to the October 2013 incident, the complainant testified that the appellant had also exposed himself on August 6, 2013.

[5] The trial judge convicted the appellant of sexual misconduct during the December 2012 to August 2013 time-frame, consisting of grabbing the complainant's buttocks; and of further misconduct on October 21, 2013, including exposing himself to the complainant.

[6] Concerning the August 6, 2013 incident, the trial judge found that the complainant's evidence was internally inconsistent and that, in addition, aspects of it were contradicted by the complainant's younger brother's version of certain events. The trial judge therefore found the appellant not guilty of the offences relating to that date.

[7] The appellant raises three issues on appeal.

[8] First, the appellant argues that having found she could not accept the complainant's evidence regarding the August 6, 2013 charges, the trial judge failed to explain how she could nonetheless accept the complainant's evidence as establishing proof beyond a reasonable doubt with respect to the other counts. In particular, the appellant asserts that the trial judge failed to consider and give effect to the central discrepancy in the complainant's evidence, therefore materially misapprehending the evidence.

[9] Second, the appellant argues that the trial judge focused improperly on the complainant's credibility, mainly by relying on his demeanour, without adequately assessing his reliability.

[10] Finally, the appellant argues that having taken account of the spontaneous nature of the complainant's disclosure and his demeanour in relation to the October 2013 incident, the trial judge erred by failing to consider the appellant's demeanour and response when confronted with the allegations.

[11] We do not accept these submissions.

[12] Immediately after finding the appellant not guilty of the August 6, 2013 charges, the trial judge adverted to the appellant's principal arguments concerning why that finding should affect her conclusion on the other charges.

[13] She explained that she was impressed with the complainant's evidence for a number of reasons, which included not only the spontaneous nature of his disclosure and his demeanour in relation to the October 2013 incident, but also the fact that he did not appear to be vindictive or acting out of animosity to the appellant; that he, a child witness, seemed to be doing his best to recount details of the incidents that had occurred many months previously; that he provided significant detail regarding the October 2013 incident; and that he acknowledged difficulty remembering certain things and guessing to fill in blanks. Moreover, despite the latter acknowledgments, the complainant did not recant the October 2013 allegations and the core of his allegations in relation to which the trial judge convicted the appellant remained intact. By way of contrast, the trial judge had earlier found that the complainant expressed some uncertainty in relation to the August 2013 events. Thus, contrary to the appellant's submissions, in our view, the trial judge explained the basis for her findings, and her reasons went well beyond reliance on the complainant's demeanour.

[14] As for the third issue, the trial judge was clearly aware of the appellant's responses to being confronted with the allegations. She adverted to his responses in her narrative of the events. It was entirely for the trial judge to determine whether to afford any weight to such responses.

[15] The appeal is therefore dismissed.

J.C. MacPherson J.A. Janet Simmons J.A. David Brown J.A.