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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

WARNING

An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect. This section of the Criminal Code provides:

517(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2) Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.H.S., 2020 ONCA 584

DATE: 20200917

DOCKET: C66697

Fairburn A.C.J.O., MacPherson and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.H.S.

Appellant

J.H.S., appearing as self-represented

Andrew Furgiuele, appearing as duty counsel

Jessica Smith Joy, for the respondent

Heard via video conference: September 10, 2020

On appeal from a conviction entered by Justice Marc R. Labrosse of the Superior Court of Justice, dated March 25, 2018, and the sentence imposed on February 25, 2019.

REASONS FOR DECISION

[1] The appellant was convicted of one count of sexual assault and received a six-month custodial sentence. He appeals from conviction and sentence.

[2] The appellant maintains that the trial judge erred in admitting the complainant’s video recorded statement as her in-chief testimony pursuant to s. 715.2 of the Criminal Code, R.S.C., 1985, c. C-46 (“Criminal Code”). His complaint is a narrow one.

[3] The appellant acknowledges that all but one of the statutory prerequisites set out in s. 715.2 of the Criminal Code were met. For instance, he acknowledges that the complainant has a “physical disability” within the meaning of s. 715.2. (Among other physical challenges faced by the complainant, she is also legally blind.) Nor does he dispute that the complainant gave a video recorded statement to the police shortly after the alleged offence, in which she described the acts complained of.

[4] The appellant’s argument rests solely on the suggestion that the trial judge erred when he concluded that the statutory prerequisite – that the complainant “may have difficulty” communicating her evidence by reason of her physical disability – was met.

[5] The trial judge gave multiple reasons for why the statutory test had been met, including that the complainant could not prepare to give her evidence in the same way as a person without her physical disabilities. The trial judge concluded that the complainant’s inability to see would interfere with her proper preparation for giving evidence. The trial judge specifically pointed to the preliminary inquiry transcript as demonstrating that the complainant was in need of refreshing her memory and that, if the video was not used as her in-chief testimony, this would create a significant challenge for her because of her visual impairment.

[6] In light of these circumstances, we find no error in the trial judge’s approach. Notably, the complainant was produced for a full cross-examination and no prejudice is alleged. We defer to the trial judge on this point.

[7] The appellant also argues that the trial judge erred in precluding him from leading specific evidence pertaining to prior sexual history. While the appellant succeeded on his s. 276 Criminal Code prior sexual activity application as it related to one prior incident, he was denied the opportunity to elicit evidence about another incident. The trial judge’s ruling in this respect is detailed and explains why the evidence was irrelevant to the proceedings. The trial judge properly summarized and applied the law. We find no error in his approach.

[8] Nor do we accede to the suggestion that the verdict was unreasonable. The trial judge gave lengthy reasons for judgment. He reviewed and correctly applied the principles from R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The trial judge also explained his credibility findings. We owe deference to those findings.

[9] The appellant also argues that the trial was unfair. We see nothing in the record to support this claim.

[10] The appellant has already served his sentence. It was not unreasonable given the aggravating circumstances involved, including the vulnerability of the complainant. It appears that the appellant’s real complaint is with the mandatory, statutory s. 490.012(1) Criminal Code order that was imposed. We would not give effect to this submission. It is a mandatory order.

[11] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“Fairburn A.C.J.O.”

“J.C. MacPherson J.A.”

“S. Coroza J.A.”