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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

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: 2019-01-15

Docket: C62583

Judges: MacPherson, Roberts and Paciocco, JJ.A.

Between

Her Majesty the Queen Respondent

and

F.F. Appellant

Counsel

Mark Halfyard and Christopher Rudnicki, for the appellant

Alexandra Terrana, for the respondent

Heard

January 10, 2019

Appeal

On appeal from the judgment of Justice Anton Zuraw of the Ontario Court of Justice, April 27, 2016.

Reasons for Decision

[1] The appellant appeals from his conviction for sexual assault against his stepdaughter, K.D. He received an intermittent sentence which he has served. He was acquitted of the charge of sexual interference against K.D.

[2] The appellant's sole ground of appeal is that the trial judge's reasons are insufficient to permit meaningful appellate review of the appellant's conviction. Specifically, the appellant submits that the trial judge failed to give adequate reasons for rejecting the appellant's evidence denying the offence, to reconcile inconsistencies in the evidence of K.D. and her mother, and to address issues of fabrication and collusion between them.

[3] We are not persuaded by these submissions.

[4] It is clear from the trial judge's reasons what he decided and why he made the decision he did. The trial judge's reasons demonstrate that he was alive to the frailties in the testimony given by K.D. and her mother. As he was entitled to do, the trial judge nevertheless accepted K.D.'s evidence that during an argument concerning K.D.'s boyfriend and a photograph of them to which the appellant took exception, the appellant angrily grabbed her breasts. He also found that K.D.'s evidence was corroborated in different respects by her mother and the appellant. Her mother testified the appellant admitted grabbing K.D.'s breasts when she confronted him with these allegations contained in a letter from K.D., which she later destroyed. While the appellant denied grabbing K.D.'s breasts or making such an admission to his former wife, he admitted the other particulars of the argument with K.D.

[5] The trial judge did not accept the appellant's denials. The trial judge's reasons show that where K.D.'s and her mother's evidence conflicted with the appellant's evidence, the trial judge accepted their evidence concerning the sexual assault and the appellant's admission to his former wife. No further explanation for rejecting the appellant's evidence was therefore required.

[6] We see no error in the trial judge's credibility findings which were open to him to make on the record before him.

[7] Accordingly, we dismiss the appeal.

"J.C. MacPherson J.A."

"L.B. Roberts J.A."

"David M. Paciocco J.A."