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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-09-20

Docket: C64094

Panel: Juriansz, Pepall and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

A.N. Appellant

Counsel

For the Appellant: Anil K. Kapoor and Victoria M. Cichalewska

For the Respondent: Elena Middelkamp

Heard and Released Orally: September 16, 2019

On Appeal From: The conviction entered by Justice Paul F. Monahan of the Ontario Court of Justice on March 16, 2017.

Reasons for Decision

[1] The appellant was convicted of two counts of human trafficking and one count of assault. The trial judge admitted two video-recorded statements of the complainant after she recanted at trial.

[2] Counsel relied on his factum for the argument that the trial judge erred by admitting the two statements.

[3] The trial judge made no error in admitting the statements. A careful oath was administered on the second statement, and there was a reasonable basis upon which the trial judge could conclude there was an appropriate substitute for an oath on the first statement. The police officer taking the first statement made it clear the complainant was to tell the truth. In any event, in her second statement she swore everything she had said in the first statement was true. The statements were given voluntarily, they were video recorded, and the complainant was available for cross-examination at the trial.

[4] Counsel's oral argument was based on insufficiency of reasons. He submitted that the trial judge provided insufficient reasons for rejecting the complainant's trial testimony and failed to explain why the prior statements satisfied him of the appellant's guilt beyond a reasonable doubt.

[5] We do not accept this argument. In our view the reasons, as principally summarized in para. 84, demonstrate why the trial judge rejected the complainant's trial evidence and why he accepted her prior statements. He clearly considered the suggestion the complainant was angry with the appellant and so had fabricated her allegations against him. However, on a consideration of all the evidence he concluded the prior statements were truthful.

[6] The trial judge's reasons satisfy the test set out in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 and R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788.

[7] The appeal is dismissed.

"R.G. Juriansz J.A."

"S.E. Pepall J.A."

"L.B. Roberts J.A."