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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-11-30

Docket: C55461

Panel: Feldman, Tulloch and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

W.W.A. Applicant/Appellant

Counsel:

• Joseph S. Wilkinson, for the appellant
• Michelle Campbell, for the respondent

Heard and released orally: November 23, 2017

On appeal from: The conviction entered on September 8, 2011 and the sentence imposed on June 11, 2012 by Justice Catherine Kehoe of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of sexual assault of his 14 year old niece. It was agreed that he visually examined her vagina. He denied touching her. The trial judge accepted the evidence of the complainant and concluded that he touched her for a sexual purpose. He appeals on the basis of ineffective assistance of counsel.

[2] The first issue to be determined is that of prejudice. As stated by the Supreme Court of Canada in R. v. B. (G.D.), 2000 SCC 22, at para. 29: "In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis."

[3] The appellant submits that trial counsel was ineffective because he:

(a) did not explore the issue of the mother's violent alcoholism resulting in a difficult relationship with the complainant, to explain why she would turn to her uncle for help; and

(b) did not cross-examine the complainant's sister to establish that because of her animus toward the appellant, she encouraged the complainant to go to the police and to embellish her story.

[4] In our view, these issues do not satisfy the prejudice requirement. The child's difficult relationship with her mother would not have informed the critical issue in the case – was there touching? The sister's evidence was problematic for the appellant as it risked opening the door to allegations of similar acts.

[5] As the appellant has not satisfied the prejudice requirement of the test for ineffective assistance, consequently, we do not need to consider the performance component of counsel's assistance.

[6] We see no error in principle with respect to the trial judge's determination of sentence. It is acknowledged that a five month sentence is within the appropriate range.

[7] The appeal is therefore dismissed. Leave to appeal the sentence is granted, but the sentence appeal is dismissed.

K. Feldman J.A.

M. Tulloch J.A.

M.L. Benotto J.A.