Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court of Appeal for Ontario

Date: 20231006 Docket: COA-22-CR-0089

Judges: Fairburn A.C.J.O., MacPherson and Zarnett JJ.A.

Between: His Majesty the King, Respondent and J.D., Appellant

Counsel: J.D., acting in person Stephanie DiGiuseppe, appearing as duty counsel Nicholas Hay, for the respondent

Heard and released orally: October 3, 2023

On appeal from: the conviction entered on March 9, 2022, and the sentence imposed on July 20, 2022, by Justice R. Cary Boswell of the Superior Court of Justice.

Reasons for Decision

[1] We dismissed the appellant’s request for an adjournment of this appeal at the outset.

[2] The appellant was convicted of one count of sexual interference in relation to his wife’s five-year-old niece. He says that the trial judge erred by not concluding that the complainant’s evidence was a complete fabrication. We do not accept this submission.

[3] The trial judge carefully reviewed the testimony of the complainant and the main defence witness, the appellant’s wife. The trial judge said this about the young complainant’s evidence:

The complainant was a witness who I had great confidence in. She gave a simple account of a brief incident of sexual interference that occurred when she was a young girl. The core elements of her account have, in my view, remained consistent over time.

[4] The trial judge said this about the appellant’s wife’s testimony:

I found J.C. to be a witness whose evidence was less fact-based than it was goal-based. Her obvious intent was to say what needed to be said to raise doubt about J.D.’s guilt even if what she said made little sense.

[5] The trial judge’s credibility assessments were clear. She wholly rejected J.C.’s exculpatory evidence, all of which was reviewed at one point or another in the reasons.

[6] He then explained why he accepted the complainant’s evidence. There is no basis for concluding that the trial judge misapplied the required W.D. analysis and reached an unjust result. This was a short, simple trial and the trial judge provided solid reasons for his conclusion that the appellant committed the offence with which he was charged.

[7] The conviction appeal is dismissed. The sentence appeal was abandoned.

“Fairburn A.C.J.O.”

“J.C. MacPherson J.A.”

“B. Zarnett J.A.”