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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20200218 DOCKET: C64161

Judges: Hoy A.C.J.O., Feldman and Gillese JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

G.W. Appellant

Counsel:

G.W., acting in person Delmar Doucette, duty counsel Jessica Smith Joy, for the respondent

Heard and released orally: February 13, 2020

On appeal from the conviction entered on November 18, 2016, by Justice A.J. O’Marra of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals his convictions for invitation to sexual touching (3 counts), sexual interference (4 counts), and sexual assault (3 counts). The appellant’s submission on appeal was that he could not have committed the offences because the hours he worked at his job, coupled with his other commitments, meant that he was never alone with the children. Thus, he says, he could not have committed the offences.

[2] This same submission was made at trial. The trial judge clearly rejected the appellant’s evidence on this matter. At paras. 88 and 89 of his reasons for conviction, the trial judge states:

[88] In considering the evidence of Mr. [W.], I find that in his denial of any misconduct he tried to minimize any opportunity to be alone with the children, such that it undermined his credibility. He said that he worked long hours and was out evenings with soccer practice or games. He never spent any time alone with the children when he lived at S[…] Street. On weekends he would help [A.] Friday nights to prepare meals for Church the next day. On Saturday mornings he would take them to church and the rest of the day he devoted to bible study. On Sundays he would take the children, other than [M.], to soccer.

[89] He maintained he had no time alone with the children. However, he acknowledged in cross-examination that during that first year and a half living with [A.], she would work every other weekend and on occasion she would be called in on the other weekends. There was ample opportunity for him to have been alone with the children.

[3] We see no basis on which to interfere with the decision below. The trial judge’s finding is thoroughly grounded in the evidence and owed deference.

[4] Accordingly, the appeal is dismissed.

“Alexandra Hoy A.C.J.O.”

“K. Feldman J.A.”

“E.E. Gillese J.A.”