Warning Regarding Publication Ban

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

DATE: 20210617 DOCKET: C68257

Feldman, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Robert Gary Anderson Appellant

Counsel: Joshua Clarke, for the appellant Andrew Cappell, for the respondent

Heard and released orally: June 15, 2021 by videoconference

On appeal from the conviction entered on October 1, 2019 by Justice Kenneth E. Pedlar of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Robert Gary Anderson appeals his conviction after a trial by judge and jury of criminal harassment, and he seeks leave to appeal his sentence. We are not persuaded that the trial judge erred, either in convicting or sentencing Mr. Anderson.

[2] Mr. Anderson contends that it was unfair for the trial judge to describe an “inconsistency” in the complainant’s evidence only when summarizing the defence position and not in his final summary of the evidence. Specifically, at one point, when asked if she was afraid of the appellant the complainant replied, “Yeah, I am, but I’m not because it was Gary”. Mr. Anderson points out that, in contrast, when summarizing the evidence, the trial judge offered an innocent explanation for an apparent conflict in the Crown’s testimony relating to the size of a dog. We see no unfairness or imbalance in the charge. The trial judge alerted the jury to the complainant’s testimony that she was scared but she was not because it was Gary and reminded the jury of defence counsel’s submission that this comment was an inconsistency in her evidence. The trial judge was entitled to comment on the apparent inconsistency about the size of the dog. We are not satisfied that the charge was unbalanced.

[3] In his charge, the trial judge did misstate the date the complainant blocked the appellant’s number but this error was not prejudicial, given that the trial judge twice alerted the jury to the correct date and reminded the jury to rely on their own recollection of the evidence. Moreover, we are not persuaded that the pinpoint date for blocking the number has the importance that defence counsel suggests.

[4] With respect to the juror that Mr. Anderson and the trial judge believed fell asleep during the trial, we are not persuaded that there was a real danger of prejudice. Mr. Anderson’s counsel raised no objection while this was allegedly occurring, giving it only passing reference after it happened. The failure of Mr. Anderson’s counsel to object suggests that the incident was not a significant one. Nor do the trial judge’s comments suggest that this incident was a matter of concern. Moreover, since Mr. Anderson’s counsel did not raise this promptly, or request an inquiry, Mr Anderson is not now in a position to demonstrate that the juror in fact fell asleep, for how long, or that this compromised the ability of the juror to adjudicate fairly. We can find no miscarriage of justice.

[5] With respect to Mr. Anderson’s sentence appeal, the two-year suspended sentence the trial judge imposed was entirely fit. The contact was unrelenting, even after many demands that it must cease. Even though the trial judge expressed the view that this case could have been dealt with by a peace bond in provincial court, in imposing the suspended sentence the trial judge took all of the circumstances into account and decided, as he was entitled to, that a fit sentence required Mr. Anderson to be convicted and not discharged.

[6] The conviction appeal is dismissed. We grant Mr. Anderson leave to appeal his sentence but the sentence appeal is also dismissed.

“K. Feldman J.A.”

“B.W. Miller J.A.”

“David M. Paciocco J.A.”