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:

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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).

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 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.

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.

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).

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.

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: 2017-06-14

Docket: C61749

Panel: Laskin, Simmons and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

M.T. Appellant

Counsel: Mark Halfyard, for the appellant Luke Schwalm, for the respondent

Heard and released orally: June 14, 2017

On appeal from: The conviction entered on September 15, 2015 by Justice McKelvey of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals his conviction for indecent assault, an historical sexual assault, on the ground that the verdict was unreasonable. The appellant contends that the verdict was unreasonable because the complainant's evidence about when the assault occurred was unreliable.

[2] The timeline is important. The count in the indictment was particularized as occurring between January 1, 1977 and December 1, 1983. The complainant was born on January 14, 1971. She gave evidence that the indecent assault occurred when she was between seven and nine years old, that is between January 1978 and January 1981. But she acknowledged that her memory of the timing was "hazy". The offence of indecent assault was repealed by Parliament on January 4, 1983 just before the complainant's twelfth birthday. The appellant thus submits that a reasonable trier of fact could not be satisfied beyond a reasonable doubt that the offence did not occur in the eleven month period from January 1983 to December 1983, which would have rendered it a nullity.

[3] We do not accept the appellant's submission. The trial judge was alive to the reliability of the complainant's evidence. And he concluded that the complainant's acknowledgement of her hazy memory was reflected in her estimate that the incident occurred when she was between seven and nine years old. He wrote at para. 44 of his reasons:

I accept F.T.'s evidence that the initial incident occurred when she was approximately seven to nine years old. While it is true that her recollection of the exact time is hazy, this is reflected already in the estimate she gave that the initial incident occurred between age seven and nine years old. The witness therefore has accounted for the lack of precision in her memory by giving the estimate she did at trial. She would have turned ten on January 14, 1981 and I do not accept that her estimate could have been out by almost two years so that the incident would have occurred at age twelve. This would conflict with her recollection that the second incident occurred at around age twelve.

[4] We see no error in the trial judge's analysis. We note as well that the defence never suggested to the complainant that the assault may have occurred when she was 12 years old. The verdict is reasonable. The appeal is therefore dismissed.

"John Laskin J.A."

"Janet Simmons J.A."

"G. Pardu J.A."