



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(1), (2), (2.1),
    (2.2), (3) or (4) or 486.6(1) or (2) 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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)      REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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)      at
    the first reasonable opportunity, inform any witness under the age of eighteen
    years and the victim of the right to make an application for the order; and

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

(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    information that could identify the victim shall not be published in any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; and

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

(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.

(4)      An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)        Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary
    conviction.

(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. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.F., 2016 ONCA 868

DATE: 20161117

DOCKET: C59968

Hoy A.C.J.O., Doherty
    and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.F.

Appellant

Vincenzo Rondinelli, for the appellant

John A. Neander, for the respondent

Heard and released orally:  November 8, 2016

On appeal from the conviction entered on July 24, 2014 by
    Justice M. Epstein, of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant advanced several grounds of appeal in his factum.  In oral
    argument, counsel advanced two submissions.  We will address those submissions
    in these reasons.  We are satisfied that there is no merit to the other grounds
    advanced in the factum.

The First Ground of Appeal

[2]

We do not agree with the submission that the trial judges questioning
    of the appellant at the end of his evidence rendered the trial unfair or
    created an appearance of unfairness.  The questions posed by the trial judge
    addressed two areas.  The first area arose out of the appellants evidence that
    when the complainant was six years old, she and a friend had come into his room
    twice while he was sleeping and touched his genitals.  The trial judge asked the
    appellant what, if anything, he had done to prevent the repetition of that
    conduct.  This matter had been canvassed in the evidence to some extent.

[3]

The second area of the trial judges questions related to the content of
    statements given by the appellant to the police and to his daughter.  The
    appellant had offered an explanation for certain errors that he said he had
    made in those statements.  The trial judge asked about the errors and, in
    particular, how the explanations applied to his statements made to the
    daughter.

[4]

The trial judges questions posed in the first area gave the appellant
    an opportunity to further explain what steps, if any, he had taken to avoid the
    repetition of the conduct of his daughter and her friend that he had described. 
    This issue was of obvious concern to the trial judge and was germane to the
    believability of the appellants evidence on a very important issue.  The
    questions properly fall under the rubric of amplification.  The questions
    were asked of the appellant at an appropriate time in the trial, that is, after
    the examination by counsel and were asked in an appropriate manner.  In our
    view, if anything, the questions enhanced the appearance of the fairness of the
    trial.

[5]

The questions asked by the trial judge in the second area also gave the
    accused an opportunity to provide a further or better explanation for
    statements he had made, particularly to his daughter and the errors that he
    said he had made in those statements.  However, this questioning clearly had a
    tone of cross-examination and potentially left the appellant in a position
    where there was nothing he could possibly say in answer to the question.  It
    probably would have been better had the trial judge left this area alone. 
    However, we are satisfied that his questions did not impair the fairness of the
    trial, or the appearance of the fairness of the trial.

[6]

This ground of appeal fails.

The Second Ground of Appeal

[7]

Counsel alleges various errors by the trial judge in his treatment of
    the evidence of a witness named Nickole Atkinson.  We do not accept these
    submissions.  The trial judge found that the demeanour and deportment of the
    witness on the witness stand showed her to be a person strongly committed to
    the protection and support of victims of child abuse.  He found that deportment
    to be entirely consistent with her evidence of the very positive, if not
    aggressive, steps she took when the complainant first revealed that she had
    been sexually abused by the appellant.  We see no error in the trial judges
    treatment of this aspect of Ms. Atkinsons evidence.  Insofar as the other
    complaints are concerned, the trial judge fully and fairly reviewed Ms.
    Atkinsons evidence.  His findings that she was a credible and, indeed,
    powerful witness were, in our view, open to him on this record and we defer to
    them.

[8]

The appeal is dismissed.

Alexandra
    Hoy A.C.J.O.

Doherty J.A.

K. van Rensburg J.A.


