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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(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

(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: 20240201 Docket: C70651

Judges: Tulloch C.J.O., Nordheimer and Gomery JJ.A.

BETWEEN

His Majesty the King Respondent

and

M.O. Appellant

Counsel: Mark C. Halfyard, for the appellant Lilly Gates, for the respondent

Heard and released orally: January 30, 2024

On appeal from the conviction entered on December 21, 2021 by Justice M.J. Lucille Shaw of the Superior Court of Justice, with reasons reported at 2021 ONSC 8403.

Reasons for Decision

[1] M.O. appeals from his convictions for sexual assault, sexual interference and break and enter. It is alleged that M.O. sexually assaulted a 13-year-old girl after breaking into her parents’ home.

[2] The complainant’s evidence in chief was made through a statement entered, pursuant to s. 715.1 of the Criminal Code. The appellant asserts that the trial judge gave undue weight to the statement. She did so, according to the appellant, because she had a flawed understanding of the Supreme Court of Canada’s decision in R. v. F. (C.C.), [1997] 3 S.C.R. 1183.

[3] In F. (C.C.), Cory J. said, at para. 19: “It follows that the videotape which is made within a reasonable time after the alleged offence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony given later at trial.”

[4] The trial judge repeated this “more accurate” reference in her reasons. The appellant says that this demonstrates that the trial judge was giving undue weight to the complainant’s statement and that she did not evaluate the complainant’s evidence in the context of the evidence as a whole.

[5] We do not agree. The statement of Cory J. must be understood as having been made in the context of explaining the purpose behind s. 715.1. It was not intended to suggest that a videotaped statement of this type was entitled to more weight than other evidence. Indeed, Cory J. made the point, at para. 46, that the overall determination of the reliability of the statement is up to the trier of fact, including the weight to be given to it.

[6] The trial judge might have better avoided repeating this reference from F. (C.C.), twice as she did, or have made it clearer that she was not approaching the complainant’s statement differently than the rest of the evidence. That said, when one reviews her detailed reasons, it is clear that the trial judge was not giving undue emphasis to the statement just because of its nature and timing. The trial judge dealt with inconsistencies in the complainant’s evidence and concluded that were minor in nature and, whether viewed individually or collectively, they did not lead her to have concerns regarding the complainant’s evidence.

[7] In the end result, the trial judge found the complainant to be credible and reliable. She gave detailed reasons for her conclusion. There is no error shown.

[8] The appeal is dismissed.

“M. Tulloch C.J.O.”

“I.V.B. Nordheimer J.A.”

“S. Gomery J.A.”