



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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.F., 2011 ONCA 636



DATE: 20111011



DOCKET: C52041



COURT OF APPEAL FOR ONTARIO



Watt, Epstein and Karakatsanis JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



B. F.



Appellant



Peter Copeland and Kevin Tilley, for the appellant



Grace Choi, for the respondent



Heard and released orally:
September 29,
          2011



On appeal from the convictions entered by Justice Ralph E.W. Carr
          of the Ontario Court of Justice, dated November 10, 2009, and the sentences
          imposed by Justice Carr on January 6, 2010.



ENDORSEMENT



[1]

The
appellant challenges his convictions of sexual assault, sexual
    interference and breach of probation on several grounds.

[2]

The appellant contends that the trial judge convicted him on the basis
    of a transaction that was different than the transaction that had formed the
    basis of the prosecution. We do not agree.

[3]

The trial judge made an express finding that the appellant intentionally
    touched the complainants vagina in the bathtub. We are not persuaded that the
    reference to the so called airplane incident tainted the findings in relation
    to those incidents that occurred in the bathtub or caused the appellant any
    miscarriage of justice. Neither are we persuaded that the trial judges reasons
    are insufficient despite their brevity and organizational confusion. Read in
    the context of the evidentiary record in this case, we are satisfied that the
    reasons are adequate to the task demanded of them by the authorities and reflect
    the core findings necessary for the convictions recorded.

[4]

The conviction of breach of probation is another matter. The trial judge
    did not make a discrete finding concerning the date upon which the sexual
    interference and assault occurred. It follows, in our view, that in the
    peculiar circumstances of this case, the conviction of breach of probation was
    unreasonable and cannot stand.

[5]

The respondent agrees that we should enter a stay on the conviction of
    sexual assault if we affirm the conviction of sexual interference. We agree.

[6]

In the result, the appeal from conviction of sexual interference is
    dismissed. The appeal from conviction of sexual assault is allowed and a stay
    entered.

[7]

The appeal from the conviction of breach of probation on the information
    charging the sexual offences is allowed and an acquittal entered. We are
    satisfied that the sentence imposed on the count of breach of probation with
    which we are concerned was concurrent to the sentence imposed for the sexual
    offences. The appellant pleaded guilty to several other breach offences
    contained in a separate information. Those convictions are not before us
    however, nor are the sentences imposed as a result of those convictions.

David
    Watt J.A.


G.J. Epstein J.A.


Karakatsanis
    J.A.


