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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-05-23

Docket: C63875

Panel: MacFarland, Watt and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

P.H. Appellant

Counsel

David North, for the appellant

Carmen Elmasry, for the respondent

Hearing

Heard and released orally: May 16, 2018

On appeal from: the conviction entered on January 18, 2017 by Justice Gregory M. Mulligan of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] It is entirely clear why the trial judge convicted Mr. H. of four sexual offences occurring when he fondled his previously estranged 16-year-old daughter on two occasions, once in his bed and once in his car. Immediately after the bed incident he began to send explicit messages to his daughter describing the kind of sexual activity he wanted to engage in. That evidence not only confirmed his sexual interest in the complainant, the timing of its onset offered powerful corroboration that their relationship had become inappropriately sexualized. A photograph taken shortly after the first event of the complainant curled up on his lap in a clearly inappropriate cuddle reinforced the context of events.

[2] Mr. H.'s primary ground of appeal relates to the evidence of his girlfriend. He claims that the trial judge misapprehended by disregarding the testimony of his girlfriend that she was in bed with Mr. H. at the time the first alleged sexual activity occurred, making it impossible for the alleged events to have happened. Mr. H. also contends that the trial judge's curt treatment of the girlfriend's evidence was insufficient to explain its rejection, and that he erred by noting that he preferred the complainant's evidence to hers.

[3] We do not allow these grounds of appeal. The trial judge did not simply say he preferred the complainant's testimony. He said he could not accept the girlfriend's specific memory, citing her friendship with Mr. H., and the opportunities Mr. H. would have had to be alone with his daughter during the relevant period. The girlfriend is also the one who photographed the inappropriate cuddle described above. The trial judge cited R. v. W. (D.) and demonstrated an understanding of this rule in his decision. The trial judge was entitled to conclude that the girlfriend's evidence did not raise a reasonable doubt in the face of the complainant's testimony, in all of the circumstances.

[4] We have considered other grounds of appeal raised in the factum, none of which we accept. We do recognize that this judgment is not without its difficulties. The trial judge should not have relied on the fact that this event is not something the complainant would forget, given that the real issue was not the complainant's recollection, but rather her credibility. The trial judge should also have explicitly addressed why he did not find inconsistencies between the complainant's trial evidence and preliminary inquiry testimony to undermine his trust in her evidence.

[5] In context however, these missteps do not amount to reversible legal error. The trial judge offered ample reason for Mr. H.'s convictions. The appeal is dismissed.

J. MacFarland J.A.

David Watt J.A.

David M. Paciocco J.A.