Publication Bans and Restrictions

Mandatory Publication Ban under s. 278.95 of the Criminal Code

WARNING This appeal is subject to a mandatory publication ban under s. 278.95. This section of the Criminal Code provides:

278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Order Restricting Publication under ss. 486.4 or 486.6 of the Criminal Code

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

COURT OF APPEAL FOR ONTARIO

DATE: 20240517 DOCKET: C69672

Fairburn A.C.J.O., Roberts and Trotter JJ.A.

BETWEEN

His Majesty the King Respondent

and

R.L. Appellant

Counsel: Jeffery Couse, for the appellant Emily Bala, for the respondent

Heard and released orally: May 13, 2024

On appeal from the convictions by Justice Donald L. Wolfe of the Ontario Court of Justice, dated December 16, 2019.

Reasons for Decision

[1] The appellant was convicted of two counts of sexual interference arising from repeated sexual acts against two children. The victims were the sons of the appellant’s partner. They lived together in an on-again-off-again relationship for some years. The appellant raises several objections to the trial judge’s reasons. In our view, these objections derive largely from the same source: the trial judge’s credibility findings.

[2] The appellant maintains that the trial judge erred in how he approached the admission of cross-count similar act evidence. Specifically, the appellant claims that the trial judge erred by only considering and rejecting actual collusion, but not unconscious collusion between the complainants. We disagree.

[3] This was a case where the defence only advanced actual collusion in relation to the similar act evidence. The trial judge was simply being responsive to the positions put by counsel. In any event, we note that the trial judge’s use of similar act evidence was explicitly only in the alternative. His reasons are clear. With or without the similar act evidence, the trial judge found the complainants entirely credible and that the Crown had proven its case beyond a reasonable doubt.

[4] The appellant further maintains that even beyond the similar act evidence analysis, the trial judge should have expressly considered unconscious collusion as it related to the complainants’ credibility. Read as a whole, the trial judge’s reasons make clear that he considered the fact that the complainants had spoken on one prior occasion about what had happened to them, and the impact of that discussion on their evidence. As we stated at the outset, this appeal is largely a request to revisit credibility findings. We see no error in how the trial judge arrived at those findings. We owe deference to those findings.

[5] Finally, the appellant raises an objection about the second prong of R. v. W.(D.), [1991] 1 S.C.R. 742. Specifically, the appellant argues that the trial judge failed to advert to why his evidence did not give rise to a reasonable doubt. Again, read as a whole, the reasons are clear on this point. The trial judge correctly stated the three-prong test from W.(D.) and his reasons are clear as to why he had no reasonable doubt.

[6] The appeal is dismissed.

“Fairburn A.C.J.O.”

“L.B. Roberts J.A.”

“G.T. Trotter J.A.”