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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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).

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: 2017-06-15

Docket: C61519

Panel: Laskin, Simmons and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

M.A. Appellant

Counsel

Jill R. Presser and Andrew Menchynski, for the appellant

Megan Stephen, for the respondent

Heard

June 14, 2017

Appeal Information

On appeal from the conviction entered on June 23, 2015 and the sentence imposed on November 27, 2015 by Justice Jeanine E. Leroy of the Ontario Court of Justice, sitting without a jury.

Appeal Book Endorsement

[1] The appellant appeals his conviction and his sentence. On his conviction appeal he makes two submissions. First, the trial judge erred in her similar fact ruling when she dealt with the question of collusion. Second, the trial judge unevenly scrutinized the evidence of the complainants and the evidence of the appellant.

[2] The appellant's first submission has two branches: the trial judge did not advert to the possibility of innocent collusion; and the trial judge made a factual error when she found that the children "did not discuss the details to any great extent". The appellant contends that the trial judge should have found the childrens' evidence was tainted by collusion and should have dismissed the Crown's similar fact application.

[3] We called on the Crown only on the second branch of the appellant's submission.

[4] On the first branch, the trial judge expressly referred to the possibility of innocent or accidental collusion, and her reasons for finding no tainting show that she considered the possibility of both intentional and accidental collusion.

[5] On the second branch of the appellant's submission, or our reading of the transcript references referred to by counsel, the trial judge's findings on the extent of the discussions between the children, itemized at points 2 and 3 at p. 52 in her reasons, are supported in the record. She made no palpable and overriding error in her findings.

[6] Admittedly, the children did discuss some details. That they did so is implied in the trial judge's findings by her use of the phrase "to any great extent".

[7] We agree with the Crown that the situation in this case is very much like the situation in Shearing. There, Justice Binnie recognized at para. 42-43 that some communication is inevitable but, as in that case, here it was not sufficient to trigger the trial judge's gatekeeper role or interfere with her ruling. Thus the appellant's first submission must fail.

[8] So too must the appellant's second submission. The appellant's defence of shady business dealings defied credulity and was belied by the corporate documents. The trial judge was right to reject his evidence.

[9] The trial judge did not ignore the inconsistencies in the male complainants' evidence. She was of the view they did not affect the male complainants' credibility. That was her call to make. For us to interfere would be to retry the case.

[10] We therefore dismiss the conviction appeal.

[11] On the sentence appeal, for the reasons set out in the Crown's factum, the sentence was fit. The sentence appeal is therefore also dismissed.