WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
(2) Subsection (1) does not apply
(a) in a case where the information relates to a young person who has received an adult sentence;
(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and
(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.
(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.
111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
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).
(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.
(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.
(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.
(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.
(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.
(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
CITATION: R. v. A.K., 2020 ONCA 435
DATE: 20200702
DOCKET: C66198
Doherty, MacPherson and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
A.K.
Appellant
Julie Santarossa, for the appellant
Elizabeth Kozak, for the respondent
Heard: In writing
On appeal from the findings of guilt made on August 14, 2018 by Justice Lynda S. Ross of the Ontario Court of Justice, sitting in Youth Criminal Justice Court.
REASONS FOR DECISION
[1] The appellant, A.K., is K.H.’s (the complainant) half-brother. They have the same father. In 2017, the appellant was charged with two counts of sexual assault. The offences allegedly occurred in 2008 or 2009, when the appellant was 14 or 15 and the complainant was between 6 and 8. After a brief trial, in which the complainant and the appellant were the only witnesses, the trial judge found the appellant guilty on both charges. She imposed conditional discharges on both counts with 18 months’ probation.
[2] The appellant appeals from the findings of guilt. For the reasons that follow, we allow the appeal and order a new trial.
[3] The complainant testified one night when the appellant was sleeping over with his father, he came into her bedroom. She was lying in bed facing away from the door. She awoke to find the appellant standing beside her bed. He touched her legs, butt and vagina over her clothing. When he tried to put his hands in her pants, the complainant rolled over away from the contact. The appellant left her room. Neither the appellant, nor the complainant said anything during the incident. It lasted about two to five minutes.
[4] The complainant described a second assault about a month or two after the first. She and her mother were staying overnight at the father’s home in Kingsville, Ontario. The complainant testified the appellant, who lived with his mother, would sleep over at his father’s home when the complainant was there “now and then”.
[5] When the complainant stayed at her father’s, she slept on a recliner in the living room. One evening, when she was lying on the recliner, she saw the appellant sitting on the couch watching television close by. She felt the appellant touching her chest, her bum and her back. The touching was over her clothing.
[6] The appellant testified and denied sexually assaulting the complainant.
[7] The trial judge concluded the complainant was a credible witness and rejected the appellant’s evidence for several reasons including the wording of his denials, his description of the relationship, his denial of another incident, and the detail of his recollection.
[8] The Court of Appeal held that each of those reasons was problematic and could not reasonably undermine the appellant’s credibility.
[9] The appeal is allowed. The errors in respect of the assessment of the appellant’s credibility require that the findings of guilt be set aside. A new trial is ordered.
“Doherty J.A.” “J.C. MacPherson J.A.” “M.L. Benotto J.A.”