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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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: 2024-02-23 Docket: COA-23-CR-0289 & C70913

Before: Fairburn A.C.J.O., Doherty and Benotto JJ.A.

Between:

His Majesty the King Respondent

and

Raymond Steve Lincoln Appellant

Counsel: Paul Socka, for the appellant Nicole Rivers, for the respondent

Heard and released orally: February 15, 2024

On appeal from the conviction entered by Justice Joseph Nadel of the Ontario Court of Justice, dated May 22, 2022, and the sentence imposed on July 14, 2022.

Reasons for Decision

[1] The appellant abandoned his sentence appeal at the outset of the hearing.

[2] The appellant was tried on several counts, including one count of sexual assault that encompassed three separate allegations and multiple counts of procuring and living on the avails of prostitution. All counts related to the same complainant. The reasons for judgment turned on the third prong of R. v. W.(D.), [1991] 1 S.C.R. 742.

[3] The trial judge found the complainant not credible or reliable in relation to anything she testified about, except for one of the three allegations of sexual assault. The trial judge gave extensive reasons for rejecting the complainant’s evidence. However, the trial judge failed to explain why, in direct contrast to everything else, he was satisfied beyond a reasonable doubt that the complainant was credible and reliable on the one allegation of sexual assault. His reasons go no further than saying:

I have taken the time to review the substance of her testimony about these matters because it seems to me to be a compelling, credible and detailed account.

I am satisfied to the requisite degree that [the appellant] is guilty of committing a sexual assault on [the complainant].

[4] In our view, this is an insufficiency of reasons case. The Crown argues that, when the reasons are read in context and as a whole, one can infer that the trial judge reconciled his concerns over the complainant’s reliability relating to this incident. The Crown fairly acknowledges, though, that even when read in context, the reasons do not explain how the trial judge reconciled his concerns over the complainant’s credibility relating to the single allegation of sexual assault. We note that this failure to reconcile concerns over credibility is particularly significant as the trial judge specifically concluded that the complainant was not “trustworthy” on one of the other sexual assault allegations. Indeed, he specifically noted that there would have been a miscarriage of justice on that allegation had it not been for the effective cross-examination conducted by defence counsel.

[5] In the circumstances, the trial judge had to provide some explanation for how he reconciled his obvious concern over the complainant’s credibility on all counts and allegations, save for the one upon which he convicted. We cannot say that on this record, a reasonable trier of fact could not reconcile the credibility findings in respect of the other counts with the finding on the sexual assault count. Therefore, the appropriate order is to quash the conviction and order a new trial.

“Fairburn A.C.J.O.”

“Doherty J.A.”

“M.L. Benotto J.A.”