Publication Ban Warning - Youth Criminal Justice Act

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction.

Publication Ban Warning - Criminal Code

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: 20220323 DOCKET: C69680

Strathy C.J.O., Coroza and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

D.S. Appellant

Counsel: Jill Gamble, for the appellant Mark Luimes, for the respondent

Heard: March 15, 2022 by video conference

On appeal from the conviction entered on April 13, 2021 by Justice Julia A. Morneau of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant – 13 years old at the relevant time – was found guilty of sexually assaulting his seven-year-old half-sister, K.R.

[2] The appellant and K.R. lived with their grandparents and their mother, J.S. While everyone lived in the same household, the appellant was cared for by his grandparents; K.R. primarily by J.S.

[3] The appellant pleaded not guilty. At trial, K.R.’s police statement was admitted pursuant to s. 715.1 of the Criminal Code, and she was cross-examined. J.S. testified on behalf of the Crown. An agreed statement of fact from the grandparents was also tendered as part of the Crown case. No defence evidence was presented. The appellant’s counsel argued that the Crown had not satisfied its burden. The trial judge disagreed, finding that the Crown had established guilt beyond a reasonable doubt.

[4] On the date in question, J.S. found the appellant and K.R. together in a room, under a blanket, giggling. She testified that, upon entering, she could see the top of K.R.’s head. The appellant and K.R. were both shirtless. The appellant’s shorts were undone. J.S. asked the appellant to leave the room so she could help K.R. get ready for bed. K.R. then told her what the appellant had just done. J.S. then brought K.R. and the appellant to speak with their grandparents. J.S. told K.R. to disclose to her grandparents what she had just told her, which she did. The appellant denied it.

[5] In the police statement, K.R. described the appellant’s conduct by pointing to her crotch area and indicating that the appellant touched himself there. She further testified that the appellant “tried to … make [her] lick … his nuts”; that he “pee[d] … in [her] mouth”; that he “got his nuts out”; and that he pulled down his zipper.

[6] K.R. has been diagnosed with FASD and ADHD. She has a speech impediment, and functions at approximately two grade levels behind her peers. Her vocabulary is limited, and during her testimony she had obvious difficulties describing her, and the appellant’s, body parts.

[7] The appellant appeals against conviction, raising these two grounds: 1) That the trial judge’s reasons are insufficient, and 2) that the verdict is unreasonable.

[8] The trial judge’s reasons, while brief, adequately explain her decision and how she arrived at it. She addressed K.R.’s limitations, given her age and disabilities, and found that, despite them, she could adequately describe what the appellant did to her, from which she did not resile. The trial judge acknowledged that K.R.’s testimony was somewhat confusing but, after viewing her evidence through the proper lens, said this:

KR’s evidence in cross examination was a bit confusing. However, when I consider KR’s limitations, her account from the police interview, and her answers in cross examination that she did not see “peeing in the mouth” on a video game, and when Ms. Gamble said to KR that her brother [the appellant] did not pee in her mouth, KR understood that question and told Ms. Gamble that he did.

[9] Apart from accepting K.R.’s evidence, the trial judge also addressed the arguments of the appellant’s trial counsel. Of note, she addressed the submission that there was not enough time for the appellant to do what K.R. alleged he did, writing that:

Ms. Gamble did point out that the time that elapsed between when JS said she went into the house to get KR ready for bed after KR entered the home was 5 minutes. That was JS’s evidence. Ms. Gamble argues that 5 minutes would be insufficient time for this event to unfold.

When witnesses offer time estimates it is usually without the benefit of having had a stopwatch in hand and there is no suggestion JS had. That afternoon the family had been outside on the deck. KR had been running through the backyard sprinkler. [The appellant] was inside the house. JS was visiting with her parents, lived at the home at this time and did enter the home to help get KR ready for bed. There was nothing unusual going on that would have required JS to measure the time. Her estimate of 5 minutes was just that.

[10] The reasons are sufficient. While the trial judge does not expressly say that K.R. was reliable, when the reasons are read as a whole, it is clear that she found K.R. was. Recognizing that a trial judge does not have to resolve every inconsistency in the evidence, or detail findings on every controverted fact, these reasons explain the path to conviction and allow for appellate review: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 20, 24, 30, 35, 53, 55-56.

[11] Lastly, this verdict is not unreasonable. Such a result is rare and only appropriate when the verdict is one that no properly instructed trier of fact, acting judicially, could reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37; R. v. Yebes, [1987] 2 S.C.R. 168, at p. 185. This onerous threshold has not been met.

[12] The appeal is dismissed.

“G.R. Strathy C.J.O.” “S. Coroza J.A.” “J. George J.A.”