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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 2017-08-16

Docket: C59281

Panel: Doherty, Blair and Rouleau JJ.A.

Between:

Her Majesty the Queen Respondent

and

C.C. Appellant

Counsel:

• Ekaterina Perchenok, for the appellant
• Kevin Rawluk, for the respondent

Heard and released orally: August 14, 2017

On appeal from: The conviction entered on June 26, 2013 by Justice Manjusha Pawagi of the Ontario Court of Justice, and the sentence imposed on October 31, 2013.

Reasons for Decision

The Conviction Appeal

[1] The appellant had sexual intercourse with his 15-year-old babysitter. He claimed that he believed she was 16. The trial turned on whether the Crown had proved beyond a reasonable doubt that the appellant did not take "all reasonable steps" to ascertain the complainant's age. The trial judge found that the Crown had met its burden. She fully summarized the evidence in her reasons.

[2] There is one ground of appeal from conviction. The appellant submits that he did not receive effective legal assistance at trial. The claim rests on a single allegation. The appellant submits that counsel should have taken custody of his spouse's MicroSD card (the "card") containing a message from a friend said to indicate that the complainant was 16. A purported printout of that message had been introduced at trial. The trial judge declined to accept that evidence, finding that the makeup and contents of the message rendered the tendered evidence unreliable.

[3] Counsel submits that forensic testing of the card may have demonstrated the reliability of the tendered evidence. According to the fresh evidence, the appellant offered the card to trial counsel, but trial counsel advised the appellant to keep the card and did not take any steps to have it analyzed.

[4] To succeed on a claim of ineffective assistance, the appellant must show first, that trial counsel was incompetent and, second, that the alleged incompetence caused a miscarriage of justice. The second requirement referred to as the "prejudice" component is best dealt with first.

[5] The appellant offers no basis for a finding that he was prejudiced by the alleged ineffective assistance. Assuming that trial counsel should have had the card forensically examined, there is no evidence that the examination would have assisted the defence of the appellant, and no evidence of any attempt to have the card examined after the trial, although the appellant had access to it.

[6] In addition, the trial judge made it clear that even if she had accepted the bona fides of the message received by the appellant's wife indicating that the complainant was 16, the trial judge would still have concluded that, in the circumstances, the Crown had proved beyond a reasonable doubt that the appellant did not take "all reasonable steps" to determine the complainant's age. The trial judge gave full reasons supporting that conclusion.

[7] There is no basis to hold that counsel's failure to have the card examined had any effect on the verdict. The appellant has not demonstrated prejudice. This ground of appeal fails and the conviction appeal is dismissed.

The Sentence Appeal

[8] The appellant seeks to appeal only the s. 161(1)(c) order as it applies to his own children. However, the Crown has pointed out that the relevant provisions in the section came into effect after the offences were committed. Consequently, s. 161(1)(c), or at least the relevant "non-communication" provision does not apply to the offences: see R. v. K.R.J., 2016 SCC 31. The s. 161(1)(c) order is struck. Otherwise, the sentence stands.

"Doherty J.A."

"R.A. Blair J.A."

"Paul Rouleau J.A."