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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 2018-01-12

Docket: C62667

Panel: Laskin, Trotter and Fairburn JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

Wayne Telesford

Appellant

Counsel

Maurice J. Mattis, for the appellant

Michael Townsend, for the respondent

Hearing and Appeal

Heard and released orally: January 9, 2018

On appeal from: the conviction entered on June 20, 2016, and the sentence imposed on August 17, 2016, by Justice S. Casey Hill of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant argues that the verdict is unreasonable and unsupported by the evidence. We disagree. Even allowing for the limited weighing that is permitted in these circumstances, there was an evidentiary basis to support the conviction – that is, the direct evidence of the complainant. This was supported by the indirect or circumstantial evidence provided by other Crown witnesses.

[2] The appellant's real contention is that the trial judge erred in his acceptance of the evidence of some witnesses, and in his rejection of the evidence of others. We disagree.

[3] As a starting point, the credibility findings of trial judges are entitled to deference on appeal. We see no basis to depart from that approach in this appeal. The trial judge's reasons are thorough and detailed. He stated the principles that apply to the assessment of evidence, especially where it conflicts. Moreover, the trial judge's reasons as a whole demonstrate that he properly applied these principles to the evidence before him.

[4] The trial judge provided ample justification for accepting the evidence of the complainant, even though it conflicted on some issues with the evidence of E.J-B., J.J-B. and D.A. The trial judge was aware of the shortcomings in the complainant's evidence. He addressed them directly and concluded that she was a credible and reliable witness.

[5] The trial judge was also alive to the contentious aspects of E.J-B.'s evidence, particularly the differences between her police statement and her testimony. The trial judge reconciled these inconsistencies before signalling his acceptance of her evidence. The trial judge was entitled to make these findings about both witnesses.

[6] The appellant argues that the trial judge subjected his evidence to a standard of scrutiny that was more exacting than that applied to certain Crown witnesses. Although the trial judge spent less time addressing the defence evidence in his reasons for judgment, this does not indicate the application of a differential standard. The trial judge was entitled to conclude that the appellant attempted to mislead the police when he gave his statement. Equally, he was entitled to find that the appellant's testimony on this issue was inadequate. Moreover, there was a basis for the trial judge to find that the appellant's wife tailored her evidence to assist her husband.

[7] Lastly, the appellant argues that the trial judge approached this case as if it were a credibility test, thereby undermining the need for proof beyond a reasonable doubt. Not only did the trial judge specifically caution himself against doing this, his reasons reflect that he followed his own direction.

[8] The appeal is dismissed.

"John Laskin J.A."

"G.T. Trotter J.A."

"Fairburn J.A."