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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-01-25

Docket: C64572

Judges: Doherty, Miller and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

W.R. Appellant

Counsel: Robert Sheppard, for the appellant Erica Whitford, for the respondent

Heard and released orally: January 22, 2019

On appeal from: the conviction entered on April 28, 2017, by Justice A. Duncan Grace of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] This was a factually and legally straightforward short jury trial. The jury had to assess the diametrically opposed versions of events given by the complainant and the appellant through the lens of the presumption of innocence and the burden of proof. The trial judge repeatedly and correctly instructed the jury on both.

[2] In his oral argument, counsel focused on two submissions. First, he argued that the trial judge should have specifically cautioned the jury that the appellant's failure to return to Canada immediately upon being told of the outstanding charges could not be used as evidence against him.

[3] We agree that the appellant's failure to return to Canada for about two years after he became aware of the charges did not constitute circumstantial evidence of his guilt. However, given the arguably inconsistent evidence given by the appellant on the timing of his return to Canada, that evidence could have been considered by the jury in assessing the appellant's credibility.

[4] The trial judge heard extensive pre-charge submissions on what, if anything, he should say to the jury about the evidence concerning the appellant's return to Canada. The trial judge eventually chose to say nothing. He was not asked to say anything about that part of the evidence by counsel for the appellant at trial. No doubt, if the trial judge had decided to tell the jury what it could not use the evidence for, that is, as circumstantial evidence of guilt, he would have been obliged to explain to the jury what it could use the evidence for when assessing the appellant's credibility.

[5] Counsel's silence at trial reflects a tactical decision. Specific reference to the evidence that could undermine the appellant's credibility would have been very dangerous for the defence, which depended on the appellant's credibility. We cannot say that the failure to give the limiting instruction now argued for amounts to misdirection in the circumstances.

[6] The second submission made by counsel in this court focuses on the complainant's evidence of the "2008 event". The complainant testified that the appellant forced her to engage in full sexual intercourse for the first time in the summer of 2008. The appellant who testified and denied all of the allegations of sexual misconduct also led evidence that he was out of the country for almost all of 2008, including the summer. He argued that this evidence showed that he could not possibly have committed the rape in the summer of 2008, as alleged by the complainant. The appellant submits that the jury should have been told that if they concluded that the complainant was deliberately lying to them about the "2008 event", they could use that deliberate lie to conclude that none of her allegations could be believed. Trial counsel forcefully took that position in his closing address to the jury.

[7] We are satisfied that on the entirety of the instructions, the jury would have understood that it was required to consider the entirety of the complainant's testimony in the context of the rest of the evidence in deciding whether it believed all, some or none of her evidence. A similar instruction appears in response to the jury's question, which focused on the "2008 event", and the impact of the jury's assessment of that evidence on their verdict on count 1.

[8] The trial judge did tell the jury that a "deliberate lie" by a witness was relevant to the witness' overall credibility. His failure to go on and specifically tell the jury that a deliberate lie is always important in assessing credibility and may lead to a rejection of the entirety of the witness' evidence is, in our view, not a fatal non-direction. The significance to the assessment of a witness' credibility of a finding that the witness deliberately lied on a material matter could not possibly be lost on 12 reasonable jurors. While there is no harm in stating the obvious, and it may be the wiser course, we do not accept that the failure to do so constitutes misdirection.

[9] The appeal is dismissed.

"Doherty J.A."

"B.W. Miller J.A."

"Gary T. Trotter J.A."