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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20231013 Docket: C70697

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

Between: His Majesty the King Respondent

And: H.A. Appellant

Counsel: H.A., acting in person Michael A. Johnston and Ryan Durran, appearing as duty counsel Erica Whitford, for the respondent

Heard and released orally: October 5, 2023

On appeal from the conviction entered by Justice Robyn M. Ryan Bell of the Superior Court of Justice, dated April 12, 2022.

Reasons for Decision

[1] The appellant was convicted of sexual interference. The trial judge found that the appellant touched the complainant with his hand in her vaginal area under her dress and underwear. This touching occurred while the complainant, her sister and the appellant’s son were resting under a blanket in a tent the appellant had set up on the grounds of an apartment building where the appellant’s and complainant’s families resided at the time. The trial judge also found that on more than one occasion, the appellant touched the complainant in her vaginal area over her clothing with his hand hidden by a blanket while they were sitting on his apartment balcony. The incidents occurred when the complainant was nine years old.

[2] The trial judge sentenced the appellant to 20 months’ incarceration, less 8 months’ credit for presentence custody, followed by 2 years’ probation.

[3] The appellant claims that the trial judge misapprehended the evidence on two essential points. The first surrounds the use of a blanket in the tent and the other surrounds the clothing worn by the complainant. We see no misapprehension of evidence on these points. If anything, it is a complaint about the sufficiency of the reasons. The reasons, in our view, are clear and comprehensive, providing a full explanation for how the trial judge arrived at her conclusions.

[4] The second issue pertains to whether the trial judge erred by failing to provide an analysis under the third prong of R. v. (W.D.), [1991] 1 S.C.R. 742. Specifically, the appellant says that, having rejected his evidence and concluding that it did not raise a reasonable doubt, the trial judge erred by failing to consider whether, on the whole of the evidence, she was convinced of the appellant’s guilt beyond a reasonable doubt. We see no such error. In the end, the trial judge properly applied the burden of proof.

[5] As for the sentence appeal, no submissions were advanced. The conviction and sentence appeals are, therefore, dismissed.

"Fairburn A.C.J.O."

"J.C. MacPherson J.A."

"B. Zarnett J.A."