Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210603 Docket: C68949

Simmons, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

P.P. Appellant

Counsel: Jill Gamble, for the appellant Jerry Brienza, for the respondent

Heard and released orally: May 27, 2021 by video conference

On appeal from the conviction entered on October 29, 2019 by Justice Julia A. Morneau of the Ontario Court of Justice.

Reasons for Decision

[1] Following a judge alone trial, the appellant was convicted of one count of sexual touching and one count of invitation to sexual touching. The complainant was 28 years old at the time of trial. He testified that the appellant abused him when he was between six and ten years old, most likely when he was around age seven. The appellant is the complainant’s uncle. The appellant was 42 years old at the time of trial.

[2] The appellant testified at trial and denied the complainant’s allegations. On appeal, the appellant challenges the trial judge’s finding that his testimony was not credible and that the complainant’s testimony was both credible and reliable. We do not accept the appellant’s submissions.

[3] The trial judge’s findings of credibility are entitled to significant deference on appeal. In this case, the trial judge amply explained why she rejected the appellant’s evidence. The trial judge neither misapprehended the appellant’s evidence nor did she submit it to greater scrutiny than that which she gave to the complainant’s evidence.

[4] On our review of the record, the trial judge’s finding that the appellant’s evidence concerning whether he cared for the complainant shifted over time is supported by the record. Moreover, the trial judge accepted, as she was entitled to do, the complainant’s mother’s evidence, that it was common that the complainant was left in the appellant’s care.

[5] The main issue at trial concerning the complainant’s evidence was reliability. The trial judge carefully reviewed the complainant’s evidence and found it reliable. She was alive to the concerns raised by the appellant’s counsel regarding the complainant’s memory and explained why she could safely rely on his account of specific incidents. We see no basis on which to interfere. The appeal is therefore dismissed.

“Janet Simmons J.A.”

“E.E. Gillese J.A.”

“Grant Huscroft J.A.”