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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20211028 Docket: C67880
Fairburn A.C.J.O., Rouleau and Huscroft JJ.A.
Between
Her Majesty the Queen Respondent
and
D’Arcy Gauthier Appellant
Counsel: Ian B. Kasper, for the appellant Kristen Pollock, for the respondent
Heard and released orally: October 25, 2021 by video conference
On appeal from the conviction entered on September 19, 2019 by Justice Gary W. Tranmer of the Superior Court of Justice.
Reasons for Decision
[1] The appellant was convicted of a single count of sexual assault committed in 1989. The trial judge’s lengthy reasons turned largely on his assessment of the complainant’s credibility. The appeal rests on three interrelated grounds, all of which arise from the reasons for judgment:
- That the trial judge reversed the burden of proof in how he approached alibi evidence;
- That the trial judge erred by approaching the evidence in a piecemeal fashion; and
- That the verdict is unreasonable.
[2] We see no reversal of the burden of proof. The trial judge clearly and correctly reviewed the applicable legal principles and applied them without error.
[3] Nor do we see any error in how the trial judge approached the evidence, specifically regarding what were said to be inconsistencies and improbabilities arising from the complainant’s version of events. To the contrary, the trial judge painstakingly reviewed the alleged inconsistencies and improbabilities and reconciled them. His reasons adequately explain how he arrived at his credibility findings. The appellant’s core complaint is really that he does not like the conclusions reached by the trial judge. It was open to the trial judge to conclude as he did on these points. He is owed deference.
[4] Bearing in mind the complainant’s evidence, the verdict was one that a properly instructed trier of fact, acting judicially, could reach. Therefore, the verdict is not unreasonable.
[5] The appeal is dismissed.
“Fairburn A.C.J.O.”
“Paul Rouleau J.A.”
“Grant Huscroft J.A.”