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:
Section 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).
Section 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.
Section 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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
Section 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.
Section 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.
Section 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.
Section 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.
Section 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: 2018-12-19
Docket: C60672
Panel: Juriansz, Benotto and Trotter JJ.A.
Between
Her Majesty the Queen Respondent
and
D.M. Appellant
Counsel
Wayne Cunningham, for the appellant
Alexandra Terrana, for the respondent
Hearing
Heard and released orally: December 17, 2018
On appeal from: the conviction entered on November 20, 2014 by Justice Louise Botham of the Ontario Court of Justice.
Reasons for Decision
[1] The appellant raises two issues on appeal.
[2] First, he submits that the trial judge erred by admitting the video-recording of the complainant's police statement into evidence under s. 715.1 of the Criminal Code.
[3] We do not entertain this argument advanced for the first time on appeal as we are not persuaded that any unfairness or prejudice resulted from the video-recording's admission in the circumstances of this case. Further, the Defence Counsel at the appellant's trial clearly and expressly consented to the admission of the video-recording.
[4] Second, the appellant submits the trial judge erred in her assessment of the complainant's evidence. In particular, the appellant submits that the trial judge failed to assess the complainant's credibility and reliability in the context of the evidence as a whole and instead focused on only one incident, namely the incident leading to the appellant's conviction.
[5] We do not accept the appellant's submission. The trial judge did consider the whole of the complainant's testimony and found it did not satisfy her beyond a reasonable doubt in regard to the other allegations. While the trial judge's reasons were brief, she provided an adequate explanation why she was satisfied beyond a reasonable doubt about the one incident.
[6] Nor do we accept the argument the conviction rests on the trial judge's assessment of nothing but the complainant's demeanour. The trial judge considered the clearness of the complainant's testimony about the incident, the level of detail provided, as well as the confidence the complainant had in her recollection of it. The trial judge was mindful of the issues between the complainant's parents and considered whether the allegation might have been the product of vindictiveness against her complainant's father, and she also considered the delayed disclosure.
[7] The appeal is dismissed.
"R.G. Juriansz J.A."
"L.B. Benotto J.A."
"G.T. Trotter J.A."