



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    the complainant or a witness shall not be published in any document or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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. Quesnelle, 2015 ONCA 554

DATE: 20150727

DOCKET: C58099

Doherty, Gillese and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Louis Quesnelle

Appellant

Mark C. Halfyard and Breana Vandebeek, for the appellant

Kevin Rawluk, for the respondent

Heard:  July 21, 2015

On appeal from the conviction entered by Justice Mulligan
    of the Superior Court of Justice, dated July 4, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We do not agree that the trial judge erred in failing to expressly refer
    to some of the inconsistencies between the complainants trial evidence and his
    statement or preliminary inquiry evidence.  These inconsistencies related to a
    few of the many incidents of abuse described by the complainant and were in the
    main peripheral to the central allegations.

[2]

The trial judge was alive to the
Vetrovec
-like frailties in the
    complainants evidence and considered those problems.  He was not required to
    articulate a
Vetrovec
-type caution.

[3]

We also do not agree that the trial judge assumed that the complainant
    had been sexually assaulted in assessing the impact of the complainants
    criminal record on his credibility.  Reading the passage as a whole, we read
    the trial judge as saying that the record and associated alcohol abuse did not
    automatically render his evidence unworthy of belief.  As the trial judge noted
    all of the circumstances had to be considered.

[4]

There was evidence that the complainant underwent hypnosis at some
    point.  The issue was not raised.  We will not speculate as to what, if any,
    impact the complainants hypnosis may have had on his evidence had the issue
    been raised.

[5]

We agree that the trial judge misapprehended the complainants evidence
    on count 3.  In fact, the complainant did not recall the event.

[6]

We do not accept the Crown argument that the misapprehension was not material
    because the trial judge accepted the sisters evidence.  The trial judge
    accepted her evidence as confirmatory of the complainants evidence.  On a
    proper understanding of the evidence, it could not confirm the complainants
    evidence as he gave no evidence about the incident. We cannot say that the
    sisters evidence could inevitably have carried the full burden of proof absent
    any evidence from the complainant.  The conviction on count 3 is quashed.  The
    Crown is entitled to a new trial on that count, if so disposed.

[7]

We see no reason to interfere with the sentence imposed on the sexual
    assault charges.  Five years was fully justified apart entirely from the
    alleged assault which gave rise to count 3.

[8]

The Crown fairly points out that the complainant was not a young
    person as defined in the
Criminal Code
.  Consequently, count 6 must
    be quashed and an acquittal entered.  That variation has no impact on the
    sentence.

[9]

In the result, the conviction on count 3 is quashed and a new trial
    ordered.  The conviction on count 6 is quashed and an acquittal is entered. 
    The convictions on counts 1, 4 and 5 stand.  The total sentence is not altered.


