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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2022-06-08 Docket: C69840

Judges: Simmons, Benotto and Miller JJ.A.

Between: Her Majesty the Queen, Respondent

And: J.G., Appellant

Counsel: Cassandra DeMelo, for the appellant Heather Fregeau, for the respondent

Heard: May 31, 2022

On appeal from the conviction entered on March 15, 2021 by Justice Marc A. Garson of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was charged with sexual interference offences arising out of three incidents in relation to his stepdaughter. The appellant did not testify. The trial judge found him not guilty on the first two incidents, but guilty on the third. The events occurred approximately 15 years before trial when the complainant was between five and ten years old.

[2] The appellant submits that the guilty verdict was unreasonable because the trial judge made inconsistent findings with respect to reliability, conflated reliability and credibility, and misapprehended the evidence by failing to appreciate the inconsistency in the complainant’s evidence. In particular, the trial judge, having acquitted the appellant on the first two incidents, failed to apply his credibility and reliability concerns to the third incident.

[3] We do not accept these submissions.

[4] Unlike the first two incidents, the third incident involved vaginal intercourse. The complainant testified that she and the appellant were in the living room on a “camp out” and he wanted “something different”. She described the vaginal penetration, that it hurt, and that she wanted him to stop. The trial judge said: “I believe her. I accept her evidence. It is both credible and reliable”.

[5] The complainant had said at the preliminary inquiry that after the appellant ejaculated, he wanted her to taste the ejaculate. At trial she did not recall this. The appellant argued the trial judge did not adequately address this inconsistency. At para. 87, the trial judge addresses this point as follows:

It is neither surprising nor unexpected that a young child who had just been vaginally penetrated by her stepfather would not recall these post-incident details with specificity.

[6] Clearly the trial judge misspoke. The issue was the difference between the complainant’s testimony at trial and at the preliminary hearing, not whether she, as a young child, recalled the post-incident events. That said, the error was immaterial. The trial judge accepted the evidence with respect to the penetration; the events after penetration were peripheral and did not relate to the trial judge’s core finding that the elements of the offence were satisfied beyond a reasonable doubt. His reasons conclude with the following, at para. 89:

Her evidence regarding Incident Three was credible, compelling, trustworthy, and detailed… I accept [her] evidence on the core issue of whether Incident Three occurred in the manner that she described.

[7] It was open to the trial judge to accept the evidence which satisfied the elements of the offence of sexual interference.

[8] The appeal is dismissed.

Janet Simmons J.A.

M.L. Benotto J.A.

B.W. Miller J.A.