



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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. P.E.M., 2012
    ONCA 275

DATE: 20120430

DOCKET: C49670

Feldman, Gillese and Hoy JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

P.E.M.

Applicant

R. Graham Zoppi, for the applicant

Deborah Krick, for the respondent

Heard and released orally: April 20, 2012

On appeal from the conviction entered on May 11, 2005 by
    Justice Russel J. Otter of the Ontario Court of Justice and upheld by Justice
    David Stinson of the Superior Court of Justice, sitting as a summary conviction
    appeal judge, dated September 14, 2007.

ENDORSEMENT

[1]

The appellant seeks leave to appeal from the decision of the summary
    conviction appeal judge which dismissed the appellants appeal from conviction
    for sexual interference of his daughter at age 11. The interference for which
    he was convicted was kissing and licking her right breast.

[2]

At trial the appellant and the complainant both testified. The appellant
    denied the interference. The trial judge acknowledged that the complainant had
    significant credibility problems, but he was satisfied beyond a reasonable
    doubt because of physical corroborating evidence of DNA, as well as cuts on the
    inside of her mouth, and observations of her demeanour at the time.

[3]

When the complainant was 16 years old and had gone to live with Victor
    who was her half-brother through her father, the complainant swore an affidavit
    recanting her allegations against her father, blaming her mother for pressuring
    her into making the accusation. She was taken to a lawyer to swear the
    affidavit.

[4]

At age 20, for the purpose of this appeal, she was cross-examined on the
    affidavit and, at that time, to the surprise of the Crown and defence counsel,
    she resiled from the recantation blaming her father and step brother and making
    further allegations against her father regarding illegal drug activity. For the
    purpose of this appeal, the appellant and respondent filed further affidavit
    evidence responding to the complainants new allegations. The Crown concedes
    that leave to appeal should be granted but submits that the fresh evidence
    should not be admitted under criteria 3 and 4 of the
Palmer
test.

[5]

In our view, this is a case referred to by Rosenberg J.A. in
R. v.
    Babinsky,
[1999] O.J. No. 1407 at para. 49, where, if the evidence were to
    be admitted, being contradictory, it would be because it may have substantial
    impeachment value if made available to a reasonable trier of fact.

[6]

In our view, however, this is not a case where the evidence should be
    admitted under criterion No. 4 of the
Palmer
test because it would not
    have affected the result of the trial. We say that for the following reason.

[7]

This was a case where the complainants credibility was a central issue
    and the trial judge was fully aware of the complainants history of dishonesty.
    He began his assessment of her credibility by describing the complainant as an
    emotionally troubled young lady that is receiving therapy, psychiatric
    assistance and medication who herself had lied to the authorities including
    the Childrens Aid Society. The trial judge convicted on the count for which
    there was corroboration of the complainants account, including the
    contemporaneous observation of the complainants demeanour following the event
    by her mother and another third party witness. The appellants DNA found on the
    complainants right breast and the physical evidence that the cuts to the
    inside of her lower lip independently observed and noted by the sexual assault
    nurse who testified at trial were consistent with the complainants account of
    forceful French kissing and licking her breast by the appellant. In these
    circumstances, the fresh evidence could not reasonably affect the verdict.

[8]

Accordingly, leave to appeal is granted, but the appeal is dismissed.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

Alexandra
    Hoy J.A.


