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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-12-01

Docket: C61728

Panel: Epstein, Paciocco, and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

L.C. Appellant

Counsel: Frank Miller, for the appellant Andrew Cappell, for the respondent

Heard and released orally: November 28, 2017

On appeal from: the conviction entered on August 7, 2015 by Justice George W. King of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] L.C. appeals from his convictions on sexual assault and sexual touching charges. The convictions arise out of alleged improper contact between the appellant and a thirteen year old girl who was a cousin.

[2] The main argument on the appeal is that the appellant received ineffective assistance from trial counsel.

[3] What is important for our purposes is whether the alleged failings of trial counsel amount to incompetence that led to a miscarriage of justice. The approach to this issue is set out in R. v. G.D.B., [2000] 1 SCR 520, 2000 SCC 22, where Major J. said, at para. 27:

The analysis proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.

[4] In support of his ineffective assistance of counsel argument, the appellant relies primarily on trial counsel's cross-examination of the complainant – a cross-examination that he says was either non-existent in many respects or ineffective in others. We reject this submission.

[5] We note that the trial judge observed that the complainant had been cross-examined "extensively" and that the cross-examination was "rigorous".

[6] Further, the trial judge gave detailed reasons for disbelieving the appellant and finding that his evidence did not give rise to a reasonable doubt and gave equally detailed reasons for accepting the evidence of the complainant including her consistency on core issues and the fair way she gave her evidence. Counsel fairly acknowledged that there were no "home runs" in the material available to trial counsel. He relies on the cumulative effect of potential areas of inconsistency relating to the narrative, but not to the core allegations, particularly given the complainant's evidence that she had a vivid recollection of the events.

[7] Notwithstanding counsel's submissions, there is simply nothing in the record before us that would suggest that any different approach by trial counsel would have led to a different result.

[8] While we would admit the fresh evidence, we would dismiss the appeal.

Gloria Epstein J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.