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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220511 Docket: C68947

Judges: Doherty, Tulloch and Favreau JJ.A.

Between: Her Majesty the Queen Respondent

and

G.R. Appellant

Counsel: William R. Gilmour, for the appellant Nicolas de Montigny, for the respondent

Heard: May 6, 2022

On appeal from the conviction entered by Justice Ivan S. Bloom of the Superior Court of Justice on July 20, 2020, with reasons reported at 2020 ONSC 4095, and from the sentence imposed on December 2, 2020, with reasons reported at 2020 ONSC 7411.

Reasons for Decision

[1] The appellant was convicted of sexually assaulting A.B. A.B. was nine years old at the relevant time. She lived with her mother, the appellant, who was her mother’s boyfriend, and her siblings. The complainant testified that, in the several weeks prior to July 2018, she was sexually assaulted at various times by the appellant. The assaults occurred when her mother was not in the home. The appellant testified and denied the assaults.

[2] The trial judge convicted the appellant and imposed a sentence of 5 ½ years. He also made the usual ancillary orders on sentencing.

The Conviction Appeal

[3] The appellant advances one ground of appeal on the conviction appeal. This ground of appeal arises out of certain answers provided by the complainant in re-examination. In his factum, counsel argued that the questions posed in re-examination were improper. However, in oral argument, counsel abandoned that position and argued that the complainant’s answers provided new details about one incident involving a sexual assault. Counsel submits trial counsel had no opportunity to consider or challenge this “new” evidence heard for the first time during re-examination. Counsel contends this rendered the trial fatally unfair.

[4] We cannot accept this submission for the following reasons. First, it would appear from a review of the argument at trial that, apart from one factual detail in the challenged evidence, the evidence had been given by the complainant at the preliminary inquiry. There is no reason to conclude trial counsel was not aware of the evidence given at the preliminary inquiry.

[5] Second, trial counsel did not seek a brief adjournment to consider his position after this evidence was given, and he did not ask for permission to reopen his cross-examination. Trial counsel’s conduct does not permit any inference that counsel was taken by surprise by the complainant’s evidence, much less that the defence was fatally compromised by this evidence.

[6] Third, the only reference the trial judge made to this part of the complainant’s evidence in re-examination was the observation that the detail added by the complainant rendered her evidence inconsistent with her prior testimony. The trial judge did not use this evidence in any way to support the Crown’s case.

[7] Fourth, the “new evidence” given by the complainant in her re-examination concerned only one of at least three discrete sexual assaults described by the complainant in her evidence. Indeed, the evidence related to the least serious of the three allegations.

[8] The conviction appeal is dismissed.

The Sentence Appeal

[9] Counsel acknowledges that the sentence imposed was within the range, although he submits it was at the high end of the range and this court should vary the sentence by imposing one at the low end of the range.

[10] Counsel points to no error in law or principle made by the trial judge. The deference owed to trial judges on sentencing is well understood.

[11] We agree that the sentence imposed was within the range. We see no basis upon which to interfere with that sentence. The appellant was in a position of trust and repeatedly violated that trust by sexually assaulting the nine-year-old complainant.

[12] Leave to appeal sentence is granted, but the appeal is dismissed.

“Doherty J.A.”

“M. Tulloch J.A.”

“L. Favreau J.A.”