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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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).

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: 2018-04-19

Docket: C63952

Panel: Benotto, Roberts and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

C.R.A. Appellant

Counsel

For the Appellant: Gerri Wiebe

For the Respondent: Kevin Rawluk

Heard and Released Orally: April 16, 2018

Appeal Information

On appeal from the conviction entered on December 8, 2016 by Justice Terrence A. Platana of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals from a conviction for sexual assault for which he received a sentence of four years imprisonment. In her able submissions, Ms. Wiebe challenges the trial judge's credibility findings in relation to the complainant's evidence. Ms. Wiebe points to two inconsistencies in relation to statements the complainant made to a sexual assault nurse.

[2] We do not agree that these two prior statements were material inconsistencies. Nevertheless, in our view, the trial judge was alive to them and addressed them in an adequate manner. While more could have been said about these inconsistencies, as well as others that arose in the complainant's evidence, we are satisfied that these were dealt with sufficiently.

[3] The appellant also argues that the trial judge failed to give proper consideration to the defence theory and the evidence said to support it. We disagree. The trial judge specifically addressed the theory of the defence and some of the evidence purported to support it. His failure to enumerate all of the points itemized by counsel in her closing submissions does not, in this case, amount to error. The trial judge's decision was explicitly based on the evidence as a whole. We are not persuaded that the trial judge failed to give fair consideration to the defence theory and the supporting evidence in his analysis.

[4] Lastly, the trial judge's credibility findings are entitled to deference. We can see no error that would warrant appellate intervention.

[5] The appeal is dismissed.

"M.L. Benotto J.A."

"L.B. Roberts J.A."

"Gary Trotter J.A."