



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(1), (1.1), (2), or (3) of the
Criminal Code
shall continue. These sections of the
Criminal Code
provide:

486(1) Any proceedings against an
    accused shall be held in open court, but the presiding judge or justice may, on
    application of the prosecutor or a witness or on his or her own motion, order
    the exclusion of all or any members of the public from the court room for all
    or part of the proceedings, or order that the witness testify behind a screen
    or other device that would allow the witness not to be seen by members of the
    public, if the judge or justice is of the opinion that such an order is in the
    interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made,
    during the proceedings, to the presiding judge or justice or, before the
    proceedings begin, to the judge or the justice who will preside at the
    proceedings or, if that judge or justice has not yet been determined, to any
    judge or justice having jurisdiction in the judicial district where the
    proceedings will take place.

(2)     In determining whether the order
    is in the interest of the proper administration of judge, the judge or justice
    shall consider

(a) societys interest in encouraging
    the reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests
    of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give
    a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order
    for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system
    participants who are involved in the proceedings;

(f) whether effective alternatives to
    the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious
    effects of the proposed order; and

(h) any other factor that the judge or
    justice considers relevant.

(3)     If an accused is charged with an
    offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273,
    279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or
    the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, by reference to the circumstances of
    the case, the reason for not making an order.

(4) No adverse inference may be drawn
    from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985,
    c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16,
    s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133;
    2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1,
    s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.




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. W.B.R., 2018 ONCA 802

DATE: 20181003

DOCKET: C64535

Hourigan, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.B.R.

Appellant

David North, for the appellant

Luke Schwalm, for the respondent

Heard: October 1, 2018

On appeal from the conviction entered on March 1, 2017 by
    Justice Susan E. Healey of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION


[1]

The appellant was convicted of sexually assaulting the complainant, his
    spouses daughter, over a period of time when the complainant was between 9 and
    11 years old. Family home life was chaotic and marred with alcohol and drug
    abuse as well as domestic violence. In January 2011, when the complainant was
    11 years old, neighbours attended at the house to intervene when the appellant
    was assaulting the complainants mother. The next day, the complainant advised
    her school principal of the domestic violence, and she and her brother were
    apprehended by the Childrens Aid Society and were subsequently adopted by an
    aunt and uncle.

[2]

In August 2015, when the complainant was 15 years old, she went alone to
    a police station to disclose the sexual assaults. This was the first time she
    had disclosed the sexual assaults to anyone.

[3]

The appellant was convicted of sexual assault and sexual interference.

[4]

At the hearing of the appeal, we dismissed the appeal with reasons to
    follow. These are those reasons.

[5]

The appellant appealed his convictions on two grounds: (1) the trial
    judge misapprehended his evidence in two serious respects; and (2) the trial
    judge applied a higher standard of scrutiny to the appellants evidence than
    the complainants.

[6]

With respect to the first ground of appeal, the appellant argued that
    the trial judge misapprehended his evidence with respect to the January 2011
    assault on the complainants mother. Specifically, he objected both to the
    trial judges finding that the appellant did not remember the incident, and the
    trial judges use of that finding to support the conclusion that his evidence
    was unreliable. The appellant argued that because the assault on the
    complainants mother was not the focus of the trial, and the complainants
    testimony about the assault was only introduced for the purposes of providing
    background narrative to explain the circumstances of the complainants
    apprehension by the CAS, it was therefore unfair to fault him for not having a
    better recollection of the incident. It was, he argued, a comparatively minor
    point. Furthermore, he argued that it was unfair because he was not questioned
    directly about what he remembered of the incident.

[7]

We do not agree that the trial judge erred. The appellant was asked both
    in examination in chief and cross-examination about the incident and he
    provided his answers. There was no obligation to follow up with more pointed
    questions. Although the appellant was not on trial for the assault against the
    complainants mother, it was nevertheless a significant event, immediately
    preceding the complainants apprehension by the CAS, and one which the
    appellant could fairly be expected to recall.

[8]

With respect to the second ground of appeal, the appellant argued that
    the trial judge erred in applying a higher standard of scrutiny to his evidence
    than the complainants. Again, we reject this argument. There were, to be sure,
    difficulties with both the appellants and the complainants evidence. However,
    the trial judge made no error in how she resolved the various inconsistencies,
    making allowance for the fact that the complainant was a young child in a
    chaotic home environment at the time of the offences. The trial judge considered
    the specific weaknesses and inconsistencies in the complainants testimony,
    but reasoned to the conclusion that they provided no reason to reject the core
    of her allegations going to the elements of each offence. She did not apply a
    differential standard of scrutiny.

DISPOSITION

[9]

The appeal is dismissed.

C.W. Hourigan J.A.

B.W. Miller J.A.

Gary T. Trotter J.A.


