Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2024-10-10 Docket: COA-22-CR-0133

Judges: MacPherson, Favreau and Dawe JJ.A.

Between:

His Majesty the King Respondent

and

G.B. Appellant

Counsel: G.B., acting in person Ian Kasper, appearing as duty counsel Erica Whitford, for the respondent

Heard: October 9, 2024

On appeal from the conviction entered on September 20, 2021, and the sentence imposed on September 7, 2022, by Justice Heather J. Williams of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was found guilty of sexual interference, invitation to sexual touching, incest, and sexual assault. He was sentenced to nine years in the penitentiary.

[2] The complainant was the appellant’s biological daughter. The complainant testified that the appellant started sexually touching her when she was 13 years old. The complainant’s evidence was that, by the time she was almost 16 years old, the appellant had vaginal intercourse with her on a regular basis two to three times per week.

[3] The appellant testified at trial and said that none of the complainant’s allegations were true.

[4] In his notice of appeal, the appellant claims that the trial judge applied uneven scrutiny to his evidence as compared to the complainant’s evidence. Uneven scrutiny is a “notoriously difficult argument to prove”, as it engages the trial judge’s credibility findings, which are owed significant deference: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 99. This court explained in R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, how to successfully make out this argument: “[T]he appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.”

[5] In this case, we see no merit to the argument. The trial judge reviewed the evidence of both the complainant and the appellant in detail, and carefully explained why she found that the appellant was not a credible witness and why she accepted the complainant’s evidence. The appellant has not pointed to anything in the record that supports a finding that the trial judge applied uneven scrutiny.

[6] At the hearing before us, the appellant submitted that the trial was unfair and that his counsel did not represent him adequately at trial. There is no support for this position in the record.

[7] In his notice of appeal, the appellant indicated that he sought to appeal his sentence, although he made no submissions on this issue at the hearing. In any event, we see no error in his sentence. The appellant committed repeated acts of sexual violence against his daughter for almost three years. The sentence is entirely consistent with the Supreme Court’s direction in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, regarding the need for significant penitentiary sentences for offences involving sexual violence against children.

[8] Finally, duty counsel filed a Notice of Constitutional Question seeking to vary the lifetime registration order in the national sex offender registry created under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) to 20 years: R. v. Rule, 2023 ONCA 31, at para. 11. The Crown consents to this request and we agree that the reduction is warranted.

[9] The appeal from conviction and sentence is dismissed. The Charter remedy is granted and the SOIRA order is reduced to 20 years.

“J.C. MacPherson J.A.”

“L. Favreau .J.A.”

“J. Dawe J.A.”