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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 2017-05-05

Docket: C61023

Panel: MacPherson, Simmons and Brown JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

P.W. Appellant

Counsel

Erin Dann, for the appellant

Andrew Cappell, for the respondent

Hearing and Appeal

Heard: April 18, 2017

On appeal from the conviction entered on July 13, 2015 by Justice June Maresca of the Ontario Court of Justice.

Endorsement

[1] The appellant and the complainant are half-siblings. The complainant alleged a protracted period of sexual abuse. The events happened in the complainant's bedroom, the appellant's bed and a basement room. The appellant denied the allegations.

[2] The trial judge found that it would be dangerous to convict the appellant on the basis of the complainant's evidence about the abuse, with the exception of one incident (the "basement incident") which the complainant was able to describe in detail and which the complainant's parents observed. The trial judge found that the parents' evidence confirmed the complainant's evidence about this particular incident. The trial judge found the appellant guilty with respect to the basement incident.

[3] The appellant appeals on two grounds.

[4] First, the appellant contends that the trial judge erred by concluding that the parents' evidence confirmed the complainant's account of the basement incident. Indeed, says the appellant, there were important inconsistencies between the parents' and the complainant's description of this incident.

[5] We do not accept this submission. Eight years had passed by the time the various witnesses testified. The trial judge was aware that the evidence from the respective witnesses did not perfectly align. The trial judge was entitled to conclude that both parents were immediately concerned by what they had seen through a window and that the father took immediate and forceful steps to stop the activity. In addition, the trial judge explicitly accepted the complainant's account of the basement incident.

[6] Second, the appellant submits that the finding of guilt was unreasonable in light of the inconsistencies among the witnesses' testimony and within the complainant's own testimony.

[7] We disagree. In essence, this ground of appeal covers the same terrain as the first ground of appeal. In our view, the trial judge did not misapprehend any evidence, was entitled to believe the complainant's detailed description of the basement incident, and dealt appropriately with the parents' evidence about how they perceived the basement incident. The trial judge's finding of guilt on the count relating to the basement incident was reasonable.

[8] The appeal is dismissed.

J.C. MacPherson J.A.

Janet Simmons J.A.

David Brown J.A.