



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    that could identify the complainant or a witness shall not be published in any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. A.A., 2013 ONCA 466

DATE: 20130709

DOCKET: C56083

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A. A.

Applicant/Appellant

Richard Litkowski, for the appellant

Matthew Asma, for the respondent

Heard:  July 4, 2013

On appeal from the conviction entered by Justice Bonnie
    J. Wein of the Superior Court of Justice, dated March 12, 2002 and from the
    sentence imposed by Justice Wein dated May 3, 2012.

ENDORSEMENT

[1]

On March 12, 2012, at a trial in the Superior Court of Justice in
    Brampton presided over by Wein J., a jury found the appellant guilty of
    trafficking a person and of receiving a financial benefit therefrom, contrary
    to ss. 279.01 and 279.02 of the
Criminal Code
. The appellant was
    acquitted of procuring a person to become a prostitute and of exercising
    control over a person to compel that person to engage in prostitution contrary
    to sections 212(1)(d) and 212(1)(h) of the
Code
. The trial judge
    sentenced the appellant to 27 months less one day imprisonment cumulatively on
    the two charges of which he was convicted.

[2]

The appellant appeals against his convictions on two grounds.

[3]

First, the appellant contends that the trial judge failed to give an
    appropriate
Vetrovec
warning to the jury respecting the complainant
    (and only witness).

[4]

We disagree. A trial judges decision on whether to deliver an unsavoury
    witness warning to a jury, and the contents of such a warning, are entitled to
    substantial defence; there is no particular formula: see
R. v. Smith
,
    2009 SCC 5, at para. 16.

[5]

At the appellants trial, the trial judge raised this issue in her
    pre-charge discussion with counsel. It was discussed both before and after
    counsels closing addresses. Ultimately, the language of the caution about the
    complainants evidence was accepted by both counsel. Importantly, the trial
    judge accepted and incorporated a suggestion made by defence counsel. Although
    the trial judge erred in her formulation of one of the
Vetrovec
factors  If you do not find her evidence trustworthy, you should be cautious
    in basing a conviction on it  in our view, the language chosen by the trial
    judge, in co-operation with counsel, on the
Vetrovec
component of her
    charge, viewed in light of the charge as a whole, fulfilled its necessary
    functional purposes.

[6]

Second, the appellant submits that the trial judge failed to identify
    the position of the defence on issues that needed to be resolved by the jury,
    and failed to relate the evidence to those issues in her jury charge.

[7]

We do not accept this submission. This was a very short one-witness
    trial. The trial judge asked for and received written Crown and defence
    positions which she would consider for incorporation into her jury charge. Just
    before she commenced the jury charge, the trial judge said:

Good morning, counsel. I received from both of you or each of
    you separately your position summaries. I think thats the first time theyve
    ever actually fit on one page each, and they were both very good. I have
    changed a word or two but theyre essentially as written. Thank you.

The trial judge incorporated the Crown and defence
    positions into the jury charge.

[8]

The defence position was straightforward. It was that the complainant
    lied and offered examples. This was the defence position and the evidence
    relating to the position.

[9]

The appeal is dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

Paul Rouleau J.A.


