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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 2017-11-07

Docket: C62392 & C62526

Judges: Simmons, van Rensburg and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent/Appellant

and

R.C. Appellant/Respondent

Counsel

John H. Hale for the appellant, R.C.

Michael Fawcett for the respondent, Her Majesty the Queen

Hearing

Heard: November 2, 2017

On appeal from: the conviction entered on April 11, 2016 and the sentence imposed on July 13, 2016 by Justice R. T. Knott of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals his conviction for sexual interference. The Crown seeks leave to appeal sentence. The conviction appeal is allowed for the reasons that follow. It is unnecessary to address the sentence appeal.

[2] The complainant was the 14 year old best friend of the appellant's daughter, M.D., who the appellant saw on alternate weekends. Following an evening during which the teenage girls had been drinking and partying at the appellant's apartment, M.D. awoke to find the complainant missing from the room where the girls had been sleeping. On searching the apartment, M.D. found the complainant asleep on the appellant's bed. The appellant was spooning the complainant; both were fully clothed. The appellant and the complainant both denied that any sexual contact had taken place.

[3] About a month after the incident, M.D. contacted the police and gave a statement. This caused the police to interview the complainant, who then asserted that she and the appellant had intercourse on that occasion and on two prior occasions when she had visited M.D. at the appellant's apartment.

[4] Taking account of the appellant's learning disability, his efforts at counselling and 20 months of house arrest bail, the trial judge sentenced the appellant to one year imprisonment (the mandatory minimum) and two years' probation.

[5] The appellant appeals from his conviction. The Crown seeks leave to appeal the sentence imposed.

[6] Much evidence was introduced at the trial regarding the appellant's bad parenting. Early in his reasons convicting the appellant, the trial judge said:

There was so much troubling about this case I had to separate the bad parenting from the alleged criminal acts.

[7] Notwithstanding that express intention, the trial judge then spent the next two full pages of his reasons, which only span about seven and one-half pages in total, detailing the evidence about the appellant's bad parenting, which included purchasing significant quantities of alcohol for the girls; allowing them to party in the building with older men and bringing his eleven year old son to the trial[1].

[8] Particularly in light of the trial judge's focus on the bad parenting evidence – and the sparseness of the balance of his reasons – reading his reasons as a whole, we cannot be satisfied that his evaluation of the appellant's credibility, and of the likelihood that the appellant committed the acts charged, was not infected by this bad parenting evidence. Put another way, we cannot be satisfied that the bad parenting evidence was not used to characterize the appellant as the type of person who engaged in improper conduct with his children (and the complainant) to the point that he would have engaged in the conduct that formed the basis of the charge. That concern is heightened by the fact that the trial judge appears to have relied on the evidence of the appellant bringing various supporters to the trial as, in some fashion, bolstering the evidence of the complainant and M.D.

[9] In so finding, we wish to make it clear that we do not accept the assertion by counsel for the respondent that this issue with the trial judge's reasons amounts to an assertion of bias. It does not. It is more fairly characterized as an error of law like any number of other evidentiary errors that can occur in the course of a trial.

[10] The appeal is allowed, the conviction is set aside and a new trial is ordered.

[11] Given our conclusion on the conviction appeal, we do not need to address the sentence appeal.

Janet Simmons J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.

Footnote

[1] Although not raised by the appellant on appeal, we questioned the admissibility of the latter evidence. The Crown cannot legitimize cross-examination on matters wholly irrelevant to the issues at trial on the pretext that it goes to credibility. Otherwise there would be virtually no area that could not be explored at trial. Trial judges can and should intervene to stop such questioning even where no objection is raised.