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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. 1

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.V., 2020 ONCA 797

DATE: 20201211

DOCKET: C67389

Juriansz, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.V.

Appellant

Craig Zeeh, for the appellant

Amy Alyea and Jeffrey Wyngaarden, for the respondent

Heard: December 10, 2020 by videoconference

On appeal from the conviction entered by Justice Anne M. Molloy of the Superior Court of Justice on December 7, 2018.

REASONS FOR DECISION

[1] The trial judge, sitting without a jury, convicted the appellant of one count of sexual assault and one count of sexual interference. The appellant appeals on the basis that the trial judge failed to provide sufficient reasons for convicting him.

[2] On December 7, 2018, immediately after counsel completed their closing submissions the trial judge stated:

I am going to reserve. So I am going to put this matter over.… Although this has not been a very long trial, the evidence is tricky, so I do think it will take me some time.

What I do know right now is that [the complainant] was sexually assaulted by the accused. I am absolutely confident of that. So there will be a conviction.

I am not in a position to set all of my reasons on the record at this point because I do need to deal with the inconsistencies. However, on the core issues of the sexual assault that occurred, I completely believe that they happened. I have no doubt that this child was sexually molested, and by this accused.

[3] The trial judge revoked the appellant’s bail and set February 28, 2019 for the delivery of reasons and sentencing. On February 28, 2019, the trial judge did not provide her reasons for conviction, heard the parties’ submissions on sentence, and put the matter over to April 30, 2019. The trial judge did not provide reasons for conviction on April 30, 2019. On that date, she sentenced the appellant to seven years’ imprisonment less 17 months of pre-sentence custody and delivered oral reasons for the sentence. Her reasons for sentence do not contain any analysis of why she was convinced of the appellant’s guilt beyond a reasonable doubt.

[4] The Crown has filed fresh evidence outlining the inquiries that have been made to determine whether the trial judge had delivered written reasons. We have reviewed the fresh evidence and would admit it. The Crown is satisfied, after making several inquiries of the trial judge’s office, the Criminal Intake Office, the Recording Management Office, and trial counsel that no reasons have been delivered and concedes that the appeal should be allowed.

[5] The evidence at trial involved some “tricky” issues, as the trial judge noted on December 7, 2018. The defence had argued that inconsistencies in the complainant’s testimony undermined his credibility and reliability. The trial judge expressly recognized she needed to explain how she dealt with these inconsistencies. Her remark that she was confident of the appellant’s guilt does not explain to the appellant why he was convicted and does not permit appellate review: R. v. Sheppard, 2002 SCC 26; R. v. R.E.M., 2008 SCC 51, at paras. 15-17; R. v. Vuradin, 2013 SCC 38, at paras. 10-15; R. v. Dinardo, 2008 SCC 24.

[6] The appeal is allowed, the conviction set aside, and a new trial ordered pursuant to s. 686(2)(b) of the Criminal Code. The draft orders that the parties have agreed upon may issue.

“R.G. Juriansz J.A.”

“M. Jamal J.A.”

“S. Coroza J.A.”