WARNING / MISE EN GARDE
The Chief Justice of the panel hearing this appeal orders that the following order be attached to the file:
The publication ban in this matter, pursuant to sections 486.4(1), (2), (2.1), (2.2), (3) or (4) or sections 486.6(1) or (2) of the Criminal Code, is maintained. These provisions of the Criminal Code provide as follows:
486.4(1) Subject to subsection (2), the judge or justice presiding may make an order prohibiting the publication of any information that would identify the victim or a witness 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,
(ii) an offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged would constitute an offence referred to in subparagraph (i) if it were committed on or after that day, or
(iii) [Repealed, 2014, c. 25, s. 22(2).]
(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 paragraphs (1)(a) or (b), the judge or justice shall
(a) as soon as feasible, inform any witness under the age of eighteen years and the victim of their right to make an application for the order; and
(b) on application made by the prosecutor, the victim or any such witness, make the order.
486.4(2.1) Subject to subsection (2.2), the judge or justice presiding may make an order prohibiting the publication of any information that would identify the victim who is under the age of eighteen years in proceedings in respect of an offence other than an offence referred to in subsection (1).
486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), the judge or justice shall, if the victim is under the age of eighteen years,
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application made by the prosecutor or the victim, make the order.
486.4(3) In proceedings in respect of an offence under section 163.1, the judge or justice shall make an order prohibiting the publication of any information that would identify a witness who is under the age of eighteen years or any person in respect of whom the offence is alleged to have been committed.
486.4(4) An order made pursuant to this section does not apply to the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6(1) Every person who violates an order made pursuant to 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 for an offence under this section, the publication or broadcasting in any manner of any information that would identify the victim, the witness or the person associated with the administration of justice who is protected by the order. 2005, c. 32, s. 15.
Court of Appeal of Ontario
Reference: R. v. F.R., 2018 ONCA 568
Date: 2018-06-21
File: C59876
Panel: Chief Justice Hoy, Justices Rouleau and Benotto
Between
Her Majesty the Queen
Respondent
and
F.R.
Appellant
Counsel:
- Christian Deslauriers, for the appellant
- Davin M. Garg, for the respondent
Date of Hearing: June 14, 2018
Decision Rendered: Orally from the bench
Appeal from: Conviction pronounced November 2, 2012 and sentence imposed November 27, 2014 by Justice Robert N. Beaudoin of the Superior Court of Justice, sitting without a jury.
Reasons for Decision
[1] The appellant maintains that the guilty verdict is unreasonable and could not reasonably have been rendered on the evidence presented at trial.
[2] He contends that the photographic identification session in which the complainant identified him was flawed and that the DNA evidence presented at trial was weak. According to the appellant, the judge did not understand the limitations of this evidence, which would constitute an error.
[3] The appellant also maintains that it was unreasonable for the judge to conclude that it was impossible that his flight by vehicle to escape three different police forces over a period of approximately two hours was due to a problem with the vehicle's license plate or a traffic violation.
[4] In our view, the appeal must be dismissed.
[5] The judge noted and took into account the problems with the photographic identification session. His reasons also demonstrate that he was aware of the limitations concerning the DNA evidence. At paragraph 60 of his reasons, he correctly explained that this evidence could not exclude the appellant, any other member of his paternal family line, and less than one percent of the population.
[6] With respect to the judge's comment concerning the flight from police, that comment must be read in its context. The word "impossible" may have been poorly chosen, but this does not constitute a palpable and overriding error.
[7] Considering the reasons as a whole, we are of the opinion that the judge committed no error. His reasons demonstrate that he properly understood the evidence presented and correctly weighed it. His conclusion that there was no plausible alternative other than the appellant's guilt was reasonable. This conclusion was supported by the evidence, which included the identification of the appellant by the complainant, the DNA evidence, and evidence of sexual interest in the complainant on the part of the appellant. Furthermore, the wound to the appellant's thumb is explained by the complainant's testimony that she bit her assailant's thumb.
[8] The appellant informed us that he was abandoning his appeal of the sentence.
[9] For these reasons, the appeal is dismissed.
"Alexandra Hoy C.J.O."
"Paul Rouleau J.A."
"M.L. Benotto J.A."