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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-12-18

Docket: C65794

Judges: Feldman, MacPherson and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

J.E. Appellant

Counsel: Margaret Bojanowska, for the appellant Andrew Hotke, for the respondent

Heard and released orally: December 11, 2018

Reasons for Decision

[1] The appellant appeals from his conviction for assault and sexual assault. The incidents occurred between the appellant and his girlfriend, who was pregnant. It was alleged that the appellant punched the complainant in the stomach on one occasion and then a month or two later forced sexual intercourse on her.

[2] On the assault offence, the trial judge rejected the appellant's explanation that the contact was accidental. He was entitled to reach that conclusion on the evidence.

[3] In terms of the sexual assault, this was inherently a credibility case. The trial judge found that the complainant's evidence regarding the sexual assault was confirmed by a witness, D.R., whom the trial judge believed.

[4] Duty counsel raises concerns about the trial judge's credibility conclusions regarding D.R. and asserted inadequacies in the reasons related to those conclusions. While we accept that the trial judge might have given more detail in support of his conclusion that he believed D.R., the fact is that the trial judge heard and saw the witness and was in the best position to assess his evidence. It is also of some importance that D.R.'s evidence was essentially consistent on the central issue with the evidence of the complainant.

[5] Determinations of credibility are inherently discretionary and absent a palpable and overriding error this court should not interfere. No such palpable and overriding error is shown here. Indeed as the Supreme Court of Canada said in R. v. Dinardo, 2008 SCC 24, [2008] 1 SCR 788, at para. 26: "Rarely will deficiencies in the trial judge's credibility analysis as expressed in the reasons for judgment merit intervention on appeal".

[6] In the end result, the reasons adequately explain why a conviction was made. The appeal is dismissed.

"K. Feldman J.A."

"J.C. MacPherson J.A."

"I.V.B. Nordheimer J.A."