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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-07-17

Docket: C62944

Judges: Benotto, Trotter and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

A.P. Appellant

Counsel

A.P., acting in person

Lorna Bolton, for the respondent

Ingrid Grant, duty counsel

Heard and released orally: July 12, 2018

On appeal from the conviction entered on May 30, 2016 by Justice Robert Wadden of the Ontario Court of Justice.

Reasons for Decision

[1] A.P. was found guilty of sexual interference with a person under the age of 14 years. This was in relation to the daughter of his wife's cousin.

[2] The complainant alleged that on one of the many occasions when she slept over at the appellant's home, the appellant touched her vagina while she was on a mattress in the living room sleeping with his two young sons.

[3] The appellant denied the allegations. His son testified in support of his father and denied being told about the incident the following morning as the victim had testified.

[4] Ms. Grant, as duty counsel, advanced a number of grounds of appeal on the appellant's behalf. She says that the trial judge only considered the complainant's credibility and not also her reliability. In our view, the trial judge's reasons as a whole demonstrate that he considered both dimensions of trustworthiness, and his reasons were responsive to the arguments advanced by defence counsel at trial. Further, we do not accept that the trial judge mischaracterized the evidence. The nuances in the evidence of the appellant and his son were dealt with adequately by the trial judge.

[5] Ms. Grant submits that the trial judge unfairly characterized the appellant's evidence about the mattress issue by saying that he was adamant in his denials. We disagree. Given the appellant's answer when shown his son's detailed sketch of the living room which depicted the mattress, the trial judge was entitled to characterize the appellant's evidence in this way.

[6] Ms. Grant also suggests that the trial judge erred when he found that the appellant tailored his evidence on the mattress issue "likely because it would be exculpatory". While the trial judge's language was unfortunate, we are not satisfied that he reversed the burden of proof, especially when read in the context of the reasons as a whole. The trial judge accepted the evidence of the appellant's son as reflected in the sketch that he prepared, and he clearly rejected the appellant's claim that he could not remember. The trial judge was entitled to find that the appellant's credibility was damaged as a result. It was open to the trial judge to make the credibility findings as he did. Accordingly, we see no basis on which to interfere.

[7] The appeal from conviction is dismissed.

"M.L. Benotto J.A."

"Gary T. Trotter J.A."

"David M. Paciocco J.A."