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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20231012 DOCKET: C70112

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

BETWEEN

His Majesty the King Respondent

and

P.W. Appellant

Counsel: P.W., acting in person Dan Stein, appearing as duty counsel Frank Au, for the respondent

Heard and released orally: October 5, 2023

On appeal from the conviction entered by Justice Robert Scott of the Superior Court of Justice, dated October 29, 2021.

Reasons for Decision

[1] The appellant was convicted of sexual interference and invitation to sexual touching. The appellant was an intimate partner of the complainant’s mother. After moving in with her, the appellant groomed the complainant with gifts, including a joint bank account. He treated the complainant differently than the other children in the household.

[2] Between 2006 and 2009, when the complainant was in upper grade school and early high school, the appellant sexually assaulted the complainant. The assaults involved digital penetration, oral sex and sexual intercourse. The assaults, extra money and gifts stopped as the complainant entered grade 10.

[3] The appellant received a global sentence of six years’ imprisonment, a DNA order, an order under s. 109 of the Criminal Code, R.S.C. 1985, c. C-46, a weapons prohibition order, and a lifetime order made under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”).

[4] With the very capable assistance of duty counsel, the appellant argues that the trial judge misapprehended the evidence on critical matters and erred in his application of the burden of proof. Misapprehension of evidence must go to substance, rather than detail and must be material to the reasoning of the trial judge. Even assuming that test is met, the appellant must also demonstrate the misapprehension played an essential role in the reasoning process resulting in the conviction.

[5] We see only one alleged misapprehension as potentially rising to the first part of this test. It relates to whether the trial judge was mistaken when he suggested there was corroboration for each of the Crown witnesses’ evidence, specifically as it related to an incident that the complainant testified about, which is said to have taken place in a bedroom. We do not see this as a misapprehension of evidence. In our view, although the evidence of the Crown witnesses was not identical, there were features to all of their evidence that could accurately be described as corroborative in nature.

[6] On the second point, the trial judge did not fail to apply the burden of proof to the entirety of the evidence. He rejected the appellant’s denial, finding him lacking in credibility on critical matters. He also accepted the credibility of the complainant and provided cogent reasons for why he came to that conclusion. Read in its entire context, the reasons supported the trial judge’s ultimate finding that the third prong of the test from R. v. (W.D.), [1991] 1 S.C.R. 742, had been satisfied.

[7] The appeal against conviction is dismissed. No submissions were made on the appeal against sentence. The sentence appeal is also dismissed, except with respect to the lifetime SOIRA order, which, on consent of the Crown, pursuant to s. 24(1) of the Charter, will be reduced to 20 years.

“Fairburn A.C.J.O.”

“J.C. MacPherson J.A.”

“B. Zarnett J.A.”