



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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.





CITATION: R. v. B.A., 2011 ONCA
          544



DATE: 20110802



DOCKET: C52853



COURT OF APPEAL FOR ONTARIO



Feldman, Blair and Watt JJ.A.



BETWEEN:



Her Majesty the Queen



Respondent



and



B.A.



Applicant/Appellant



Howard Rubel, for the appellant



Benita Wassenaar, for the respondent



Heard & released orally: July 27, 2011



On appeal from the conviction entered on July 16, 2010 by
          Justice C. Gilmore of the Superior Court of Justice, sitting without a jury.



ENDORSEMENT



[1]

The appellant seeks to set aside his conviction on a charge of touching
    the complainant for a sexual purpose, entered by Justice Gilmore of the
    Superior Court of Justice on July 16, 2010.  He received a sentence of 12
    months imprisonment.

[2]

The appellant was a young high school teacher.  The trial judge found
    that he and the complainant  then a 15-year old grade 10 student  carried on
    a sexual relationship between December 2006 and September 2007.  Witnesses over
    the 23-day trial included the complainant, teachers, principals, students,
    police officers, the appellants common law spouse, his mother, and a
    handwriting expert.  The appellant did not testify.

[3]

The evidence also included a series of MSN chat logs/emails extending
    over a lengthy period of time, as well as notes exchanged between the appellant
    and the complainant during classes that he supervised at the school.  The MSN
    messages and notes were salacious and graphic in their description of sexual
    activities between the two, both past and intended.  One final MSN chat/email
    occurred after the disclosure of the relationship; in it the appellant pleads
    for the complainant to lie about the relationship to save him and his job and
    to tell people she made it all up.  The complainant declined to do so.  The
    trial judge accurately characterized this MSN chat as darkly compelling.

[4]

Although he raised other issues on behalf of the appellant, Mr. Rubels
    principal argument was that the trial judge  having found that certain events
    could not have occurred as described by the complainant  failed to consider
    the impact of what he called these falsehoods and impossibilities on the
    overall credibility and reliability of the complainants evidence as a whole. 
    This fed his further submissions that the trial judge misapprehended certain
    evidence and applied an uneven level of scrutiny to the assessment of the
    complainants testimony as compared to that of the defence witnesses,
    particularly, that of Ms. P. (the appellants common law spouse).

[5]

We do not accept these submissions.

[6]

The trial judge gave lengthy and thorough reasons, canvassing the
    pertinent evidence of all the witnesses in detail and considering and applying
    the applicable legal factors, including those surrounding the application of
    the
W.D.
principle.  She was assiduously alive to the important
    inconsistencies and contradictions in relation to the complainants evidence
    and, as well, that of other witnesses, and addressed these issues directly.

[7]

The trial judge accepted the evidence of the complainant where she found
    it to be confirmed by other independent evidence  particularly the MSN chats
    and notes referred to above, but rejected it when it did not accord with the
    objective evidence.  In doing so, she found that certain events and incidents
    could not have, or did not occur as the complainant described them.  In each
    circumstance, having done so, however, she explained why she was nonetheless
    accepting the complainants evidence that something of a sexual nature did
    happen.  While there were arguments to be made to the contrary regarding these
    circumstances, the trial judge took a different view and the record supports
    her findings on the whole.  We are not persuaded that she applied a different
    level of scrutiny to the evidence of the complainant and that of the defence
    witnesses, particularly that of Ms. P.  She was entitled on the evidence to
    draw the inferences and to make the findings she did.

[8]

On a reading of the trial judges reasons as a whole, we are quite
    satisfied that she was aware of the impact of her findings rejecting portions
    of the complainants testimony on the credibility and reliability of the
    complainants testimony overall, and that she applied the appropriate
    considerations in addressing and resolving the important credibility issues on
    which the trial turned.

[9]

The existence of the MSN chats and the notes mentioned previously was
    established through evidence that was essentially independent of the
    complainants testimony.  This evidence was simply overwhelming in support of
    the Crowns case.

[10]

The appellant was properly convicted, and the appeal is therefore
    dismissed.

K. Feldman J.A.

R.A. Blair J.A.

David Watt J.A.


