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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. D.L., 2020 ONCA 77

DATE: 20200131

DOCKET: C64746

Watt, Tulloch and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.L.

Appellant

Mark Halfyard, for the appellant

Elizabeth Teed, for the respondent

Heard and released orally: January 22, 2020

On appeal from the conviction entered on October 31, 2017 and the sentence imposed on June 4, 2018 by Justice Thomas A. Bielby of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant was convicted of counts of sexual assault and sexual interference after a trial before a judge of the Superior Court of Justice sitting without a jury. He was sentenced to a term of imprisonment of six months less one day and ordered to comply with the terms of a probation order for a period of two years as well as the usual ancillary orders.

[2] He appeals from the conviction.

The Background Facts

[3] The allegations against the appellant were historical in nature. They involved two complainants. In respect of one complainant, the appellant was acquitted. In respect of the other, he was convicted. The complainants were sisters in relation to whom the appellant occupied a position of trust.

[4] The appellant testified at trial. As he had done during a videotaped interview on arrest, he denied that the events of which the complainants testified occurred.

The Grounds of Appeal

[5] In oral argument, the appellant advanced three principal grounds of appeal. He says that the trial judge erred:

i. in failing to reconcile inconsistencies between the evidence of the complainant and the testimony of other witnesses, including her mother, about prior reporting of the assault and access to, and use of, a computer in the appellant’s home office;

ii. in overemphasizing the demeanour of the appellant during a police interview as the principal basis for rejecting his evidence denying that the events alleged ever too place; and

iii. in assigning too much weight to the youthfulness of the complainant in assessing her credibility as a witness and the reliability of her testimony.

Discussion

[6] The appellant readily accepts that a trial judge is under no obligation to reconcile every inconsistency, whether internal or external, in the testimony of a witness, in this case the complainant. He also acknowledges that demeanour is a factor that the trial judge was entitled to consider in assessing the credibility of any witness who testified at trial. Nor does he dispute that a trial judge is entitled to consider the age of a witness at the time of relevant events as a factor to consider in assessing the truthfulness of that witness, in particular, in reconciling various inconsistencies in that witness’ evidence.

[7] We are not persuaded that the claims of error advanced, whether considered individually or cumulatively, warrant our intervention. That another judge might have provided a more detailed assessment of the inconsistencies in the complainant’s evidence; or explored more fully the discrepancies between her evidence and that of other witnesses; or might have relied less on demeanour as a credibility and/or reliability determinant; or have accorded less latitude to the complainant’s age in the evaluation of her evidence does not mean that the analysis of this trial judge is fatally flawed.

[8] In the result, we are satisfied that the findings made by the trial judge were open to him. The specific complaints advanced do not rise to the level required to warrant our interference.

Disposition

[9] The appeal from conviction is dismissed.

[10] In his notice of appeal, the appellant also appealed sentence. This appeal was not pursued in the factum or in oral argument. The appeal from sentence is dismissed.

“David Watt J.A.”

“M. Tulloch J.A.”

“Gary Trotter J.A.”