Warning Regarding Witness Identity

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order prohibiting disclosure of a witness’ identify has been made in this proceeding pursuant to s. 486.31 of the Criminal Code and shall continue. This section of the Criminal Code provides that:

486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private.

(3) In determining whether to make the order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) the nature of the offence;

(c) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(d) whether the order is needed to protect the security of anyone known to the witness;

(e) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer;

(e.1) whether the order is needed to protect the witness's identity if they have had, have or will have responsibilities relating to national security or intelligence;

(f) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(g) the importance of the witness' testimony to the case;

(h) whether effective alternatives to the making of the proposed order are available in the circumstances;

(i) the salutary and deleterious effects of the proposed order; and

(j) any other factor that the judge or justice considers relevant.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

S.C. 2015, c. 20, s. 38(3).

Court Information

COURT OF APPEAL FOR ONTARIO

DATE: 20240517

DOCKET: COA-23-CR-0401

Pepall, Thorburn and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Baba Ouedraogo Appellant

Counsel:

Baba Ouedraogo, acting in person Dan Stein, appearing as duty counsel Frank Au, for the respondent

Heard and released orally: May 9, 2024

On appeal from the convictions entered on January 15, 2021 by Justice Russell S. Silverstein of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals from his convictions of sexual assault with a weapon, sexual assault, robbery, disguise with intent, and failure to comply with a release order. Duty counsel was unable to provide assistance in support of the appellant’s appeal.

[2] The trial judge found that the circumstantial evidence implicating the appellant in the attack of the complainant was overwhelming. The inferences of guilt that he drew from the circumstantial evidence were the only reasonable inferences available. We see no basis on which to interfere with the convictions in this case.

[3] The conviction appeal is dismissed. The sentence appeal is proceeding as a solicitor’s appeal.

“S.E. Pepall J.A.”

“Thorburn J.A.”

“J. George J.A.”