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(1), (1.1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or the justice who will preside at the proceedings or, if that judge or justice has not yet been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider:

(a) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants who are involved in the proceedings;

(f) whether effective alternatives to the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the proposed order; and

(h) any other factor that the judge or justice considers relevant.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

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).

(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.

(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.

(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.

(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.

(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.

(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: 2018-10-03

Docket: C64535

Panel: Hourigan, Miller and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

W.B.R. Appellant

Counsel: David North, for the appellant Luke Schwalm, for the respondent

Heard: October 1, 2018

On appeal from: The conviction entered on March 1, 2017 by Justice Susan E. Healey of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of sexually assaulting the complainant, his spouse's daughter, over a period of time when the complainant was between 9 and 11 years old. Family home life was chaotic and marred with alcohol and drug abuse as well as domestic violence. In January 2011, when the complainant was 11 years old, neighbours attended at the house to intervene when the appellant was assaulting the complainant's mother. The next day, the complainant advised her school principal of the domestic violence, and she and her brother were apprehended by the Children's Aid Society and were subsequently adopted by an aunt and uncle.

[2] In August 2015, when the complainant was 15 years old, she went alone to a police station to disclose the sexual assaults. This was the first time she had disclosed the sexual assaults to anyone.

[3] The appellant was convicted of sexual assault and sexual interference.

[4] At the hearing of the appeal, we dismissed the appeal with reasons to follow. These are those reasons.

Grounds of Appeal

[5] The appellant appealed his convictions on two grounds: (1) the trial judge misapprehended his evidence in two serious respects; and (2) the trial judge applied a higher standard of scrutiny to the appellant's evidence than the complainant's.

First Ground of Appeal: Misapprehension of Evidence

[6] With respect to the first ground of appeal, the appellant argued that the trial judge misapprehended his evidence with respect to the January 2011 assault on the complainant's mother. Specifically, he objected both to the trial judge's finding that the appellant did not remember the incident, and the trial judge's use of that finding to support the conclusion that his evidence was unreliable. The appellant argued that because the assault on the complainant's mother was not the focus of the trial, and the complainant's testimony about the assault was only introduced for the purposes of providing background narrative to explain the circumstances of the complainant's apprehension by the CAS, it was therefore unfair to fault him for not having a better recollection of the incident. It was, he argued, a comparatively minor point. Furthermore, he argued that it was unfair because he was not questioned directly about what he remembered of the incident.

[7] We do not agree that the trial judge erred. The appellant was asked both in examination in chief and cross-examination about the incident and he provided his answers. There was no obligation to follow up with more pointed questions. Although the appellant was not on trial for the assault against the complainant's mother, it was nevertheless a significant event, immediately preceding the complainant's apprehension by the CAS, and one which the appellant could fairly be expected to recall.

Second Ground of Appeal: Differential Standard of Scrutiny

[8] With respect to the second ground of appeal, the appellant argued that the trial judge erred in applying a higher standard of scrutiny to his evidence than the complainant's. Again, we reject this argument. There were, to be sure, difficulties with both the appellant's and the complainant's evidence. However, the trial judge made no error in how she resolved the various inconsistencies, making allowance for the fact that the complainant was a young child in a chaotic home environment at the time of the offences. The trial judge considered the specific "weaknesses and inconsistencies in the complainant's testimony", but reasoned to the conclusion that they provided "no reason to reject the core of her allegations going to the elements of each offence." She did not apply a differential standard of scrutiny.

Disposition

[9] The appeal is dismissed.

"C.W. Hourigan J.A."

"B.W. Miller J.A."

"Gary T. Trotter J.A."