



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada, 1970,
    as it read immediately before January 1, 1988; or

(b)       two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in any of
    subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order;
    and

(b)  on
    application made by the complainant, the prosecutor or any such witness, 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).

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. B.T., 2013 ONCA 535

DATE: 20130830

DOCKET: C56434

Sharpe, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

B.T.

Respondent

Benita Wassenaar for the appellant

Paolo Giancaterino, Michael A. Smith and Jessica
    Abou-Eid for the respondent

Heard and released orally: August 26, 2013

On appeal from the order of Justice Colin D.A. McKinnon
    J. of the Superior Court of Justice, December 4, 2012, allowing a summary
    conviction appeal from the sentence imposed on May 28, 2010 by Justice Jack D.
    Nadelle of the Ontario Court of Justice.

ENDORSEMENT

[1]

The respondent was convicted of sexual assault and sexual touching and
    sentenced to a total of 6 months imprisonment. The complainants were 12 and 16
    years old at the time of the offences and were friends of the respondents
    step-daughter. At the sentencing hearing, the trial judge refused to permit the
    respondents counsel to cross-examine the complainants on their victim impact
    statements.

[2]

The summary conviction appeal judge dismissed the appeal from conviction
    but allowed the appeal from sentence on the ground that the trial judge had
    erred by refusing to permit cross-examination on the victim impact statements.
    He remitted the matter to the trial court to hold a fresh sentencing hearing.

[3]

The Crown seeks leave to appeal on the ground that the summary
    conviction appeal judge had no jurisdiction to remit the matter for a fresh
    sentencing hearing and that he also erred in finding that the trial judge
    should have permitted cross-examination on the victim impact statements.

[4]

For the following reasons, we grant leave to appeal and allow the
    appeal.

[5]

It is conceded that the summary conviction appeal judge erred in
    remitting the matter to the trial judge to hold a fresh sentencing hearing. The
    summary conviction appeal judge had no jurisdiction pursuant to the relevant
    provisions of the
Criminal Code
governing summary conviction appeals to
    make such an order. The respondent does not dispute that leave to appeal must
    be granted and the appeal allowed on that issue.

[6]

We also grant leave on the issue with respect to the permission to
    cross-examine on the victim impact statements. In our view, the summary
    conviction appeal judge erred in finding an error on the part of the trial
    judge. The complainants did not read their victim impact statements in open
    court. The respondents counsel stated that he proposed to ask the complainants
    a few questions so Your Honour can get a full flavour of where these
    individuals may be at. I am in the courts hands. The trial judge indicated
    that he was not inclined to allow the cross-examination and counsel did not
    press the matter or provide any facts or further details to explain the basis
    for his proposed cross-examination. In our view, on this record, the respondent
    failed to identify with sufficient clarity a fact or facts contained in the
    victim impact statements that were disputable and that the request to
    cross-examine was not specious or empty as required by
R. v. V.W
.,
    2008 ONCA 55.

[7]

In any event, we note that the trial judge did not appear to have placed
    any significant reliance on the victim impact statements when determining the
    appropriate sentence. He indicated that he had read the statements and explained
    their use in a proper way. The sentence he imposed was well within the range
    for these offences quite apart from any potentially aggravating factors
    revealed in the victim impact statements.

[8]

The fresh evidence as to the respondents state of health, in the
    circumstances of this case, is a matter for the correction officials to
    consider when dealing with the respondent and does not persuade us that the
    otherwise fit sentence should be varied.

[9]

Accordingly, we grant leave to appeal, allow the appeal and pursuant to
    ss. 687 and 839(2), restore the sentence imposed by the trial judge. The
    appellant is ordered to surrender into custody forthwith failing which, a
    warrant for his arrest shall issue.

Robert J. Sharpe J.A.

Gloria Epstein J.A.

P. Lauwers J.A.


