



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.

6.

(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

7.

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

8.

(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. Anderson, 2021 ONCA 435

DATE: 20210617

DOCKET: C68257

Feldman, Miller and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Gary Anderson

Appellant

Joshua Clarke, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: June 15, 2021 by
    videoconference

On appeal from the conviction entered on
    October 1, 2019 by Justice Kenneth E. Pedlar of the Superior Court of Justice,
    sitting with a jury.

REASONS FOR DECISION


[1]

Robert Gary Anderson appeals his conviction
    after a trial by judge and jury of criminal harassment, and he seeks leave to
    appeal his sentence. We are not persuaded that the trial judge erred, either in
    convicting or sentencing Mr. Anderson.

[2]

Mr. Anderson contends that it was unfair for the
    trial judge to describe an inconsistency in the complainants evidence only
    when summarizing the defence position and not in his final summary of the
    evidence. Specifically, at one point, when asked if she was afraid of the
    appellant the complainant replied, Yeah, I am, but Im not because it was
    Gary. Mr. Anderson points out that, in contrast, when summarizing the
    evidence, the trial judge offered an innocent explanation for an apparent
    conflict in the Crowns testimony relating to the size of a dog. We see no
    unfairness or imbalance in the charge. The trial judge alerted the jury to the
    complainants testimony that she was scared but she was not because it was Gary
    and reminded the jury of defence counsels submission that this comment was an inconsistency
    in her evidence. The trial judge was entitled to comment on the apparent
    inconsistency about the size of the dog. We are not satisfied that the charge
    was unbalanced.

[3]

In his charge, the trial judge did misstate the
    date the complainant blocked the appellants number but this error was not prejudicial,
    given that the trial judge twice alerted the jury to the correct date and
    reminded the jury to rely on their own recollection of the evidence. Moreover,
    we are not persuaded that the pinpoint date for blocking the number has the
    importance that defence counsel suggests.

[4]

With respect to the juror that Mr. Anderson and
    the trial judge believed fell asleep during the trial, we are not persuaded
    that there was a real danger of prejudice. Mr. Andersons counsel raised no
    objection while this was allegedly occurring, giving it only passing reference
    after it happened. The failure of Mr. Andersons counsel to object suggests
    that the incident was not a significant one. Nor do the trial judges comments
    suggest that this incident was a matter of concern. Moreover, since Mr.
    Andersons counsel did not raise this promptly, or request an inquiry, Mr
    Anderson is not now in a position to demonstrate that the juror in fact fell
    asleep, for how long, or that this compromised the ability of the juror to
    adjudicate fairly. We can find no miscarriage of justice.

[5]

With respect to Mr. Andersons sentence appeal,
    the two-year suspended sentence the trial judge imposed was entirely fit. The
    contact was unrelenting, even after many demands that it must cease. Even
    though the trial judge expressed the view that this case could have been dealt
    with by a peace bond in provincial court, in imposing the suspended sentence the
    trial judge took all of the circumstances into account and decided, as he was
    entitled to, that a fit sentence required Mr. Anderson to be convicted and not
    discharged.

[6]

The conviction appeal is dismissed. We grant Mr.
    Anderson leave to appeal his sentence but the sentence appeal is also
    dismissed.

K.
    Feldman J.A.

B.W.
    Miller J.A.

David
    M. Paciocco J.A.


