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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
Date: 2021-05-27 Docket: C65194
Watt, Benotto and Harvison Young JJ.A.
Between:
Her Majesty the Queen Respondent
and
Jayson Tootiak Appellant
Counsel:
Ian B. Kasper, for the appellant Alexander Hrybinsky, for the respondent
Heard: May 19, 2021 by video conference
On appeal from the conviction entered on February 26, 2013 and the sentence imposed on December 1, 2015 by Justice Jack Nadelle of the Ontario Court of Justice.
Reasons for Decision
[1] The appellant was convicted of a sexual assault and assault causing bodily harm. He was sentenced to 13 years less two years pre-sentence custody on the sexual assault and 10 years concurrent on the assault causing bodily harm. He appeals his conviction and sentence.
[2] The appellant formally agreed at trial that the sex act with the complainant took place. He did not testify.
[3] He appeals the trial judge’s finding on credibility of the complainant. He submits that the judge erred by: (i) bolstering her credibility because she acknowledged her criminal record; (ii) relying on evidence to support her credibility that was neither independent nor material; and (iii) finding that she had an excellent recollection of events.
[4] We accept none of these grounds.
[5] A trial judge’s finding of credibility is owed a high degree of deference on appeal. Read as a whole, the trial judge’s reasons show he found the complainant to be credible and reliable. He made none of the three errors alleged. In particular:
The trial judge cautioned himself on the complainant’s criminal record. In this context he commented that she readily admitted it. His comment was responsive to the defence focus on her record during cross-examination. It did not amount to impermissible bolstering.
There was independent evidence confirming the complainant’s evidence: the bus driver and the police officer testified about injuries to her face and head. The nurse testified about injuries to her buttocks. This evidence was independent and material.
The trial judge was not required to address every inconsistency in the complainant’s evidence. He found her recollection of “events” to be excellent. Clearly, he was not referring to individual details such as how many drinks she had consumed or how certain abrasions happened but rather her recollection of being violently assaulted and raped.
[6] We see no error in the trial judge’s conclusions.
[7] The appellant was sentenced to 13 years less two years for pre-sentence custody for the sexual assault. It is acknowledged by the Crown that this exceeds the maximum sentence of 10 years and is thus an error.
[8] The conviction appeal is dismissed. The sentence appeal is allowed. The net sentence is therefore varied to six years, 10 months and two days.
“David Watt J.A.”
“M.L. Benotto J.A.”
“A. Harvison Young J.A.”