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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-04-18

Docket: C64236

Judges: Juriansz, Watt and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

R.K. Appellant

Counsel:

• Michael Dineen, for the appellant
• Jennifer A.Y. Trehearne, for the respondent

Heard and released orally: April 18, 2019

On appeal from: The conviction entered on May 15, 2017 by Justice Thomas Lofchik of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant appeals his conviction of one count of sexual interference following a short trial by jury.

[2] The main thrust of the defence was that the complainant fabricated the complaint because of pressure from his father to make the complaint. In fact, the complainant did disclose the alleged abuse to his mother immediately following his father yelling at him to admit he had been abused.

[3] The appellant attacks the trial judge's instruction to the jury that "[t]he timing of the disclosure signifies nothing."

[4] Inclusion of this sentence in the charge was ill-advised in the context of this case. However, we are satisfied the jury would not have been misled when the impugned sentence is considered in light of the charge as a whole and closing addresses of counsel. Considering the sentence in context, it is clear the trial judge was referring to the delay between incidents alleged and the disclosure, and not the circumstances in which disclosure was made.

[5] The entire paragraph containing the impugned sentence makes this clear:

The timing of the disclosure signifies nothing. Not all children immediately disclose sexual abuse and the timing of the disclosure depends upon the circumstances of the particular victim. There's no predictable rule as to how people who are victims of trauma such as sexual assault will behave. In assessing the credibility of the complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure standing alone will never give rise to an adverse inference against the credibility of a complainant. The reasons for delay are many. They may include embarrassment, fear, guilt, or a lack of understanding and knowledge.

[6] The defence position was clearly outlined in the charge and the trial judge reviewed the evidence supporting it.

[7] We would not give effect to this ground of appeal.

[8] The appellant also argues the charge was unbalanced. We are not persuaded this is so.

[9] Lastly, with consent of the Crown, the victim fine surcharge is set aside.

[10] The appeal from conviction is dismissed.

R.G. Juriansz J.A.

David Watt J.A.

Harvison Young J.A.