



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. D.C., 2017 ONCA 143

DATE: 20170216

DOCKET: C60504

Hoy A.C.J.O., Doherty and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.C.

Appellant

Timothy E. Breen, for the appellant

Peter Fraser, for the respondent

Heard and released orally: February 9, 2017

On appeal from the conviction entered on January 6, 2015
    by Justice Bonnie J. Wein of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of multiple offences related to sexual acts
    with his step-sister, 10 years his junior. The appellant began with fondling
    over the complainants clothing when she was just six years old, and had
    proceeded to full intercourse with the complainant on a regular basis by the
    time the complainant was 10 or 11 years old. The complainant, over time,
    developed a romantic attachment to the appellant, which ended when the
    complainant was 19, shortly after the appellant impregnated her. The appellant
    admitted the sexual relationship. He insisted, however, that it did not begin
    until the complainant had turned 16, which evidence the trial judge rejected.

[2]

The trial judge found the appellant to have been in a position of trust
    over the complainant, who had been particularly vulnerable as the youngest in a
    large, recently blended family. She was desperate for love and attention, and
    the appellant exploited this vulnerability for his sexual gratification. The
    offences for which the appellant was convicted correspond primarily to sexual
    acts that occurred over the period of six years between the appellant turning
    18 and the complainant turning 14.

[3]

The appellant advances two grounds of appeal. First, the trial judges
    conduct of the trial is said to have raised an apprehension of bias against the
    appellant. The appellant points to four allegedly improper interventions by the
    trial judge:

1.       interjections in defence counsels cross-          examinations;

2.       interventions in the examination of witnesses so      as
    to minimize inconsistencies;

3.       assuming control of the prosecutions           examination
    of two witnesses; and

4.       questioning the appellant as to whether he had    been
    drinking at lunch recess.

[4]

We reject as without merit the argument that the trial judges
    interventions gave rise to a reasonable apprehension of bias.

[5]

Her interjections occurred during questioning by the Crown and by the
    defence and were intended to:

1.       insure that procedural and
    evidentiary rules were  followed;

2.       clarify questions asked by
    counsel;

3.       clarify answers; and

4.       move the trial forward in an
    orderly fashion when  questioning had bogged down on a collateral           matter.

[6]

None of the interjections support the argument that the trial judge took
    over the Crowns case. At worst, the interventions by the trial judge during
    the examination of one somewhat difficult Crown witness suggested that she
    became mildly frustrated with the Crowns difficulty in getting to the relevant
    evidence. These interjections did not, however, interfere with counsels
    ability to fully and fairly put the defence forward. We simply do not read into
    these interjections the adversarial tone urged by counsel for the appellant.
    This ground fails.

[7]

Similarly with the second ground of appeal - misapprehension of evidence
    -  four alleged errors are raised:

1.       failing to address the reliability of the           complainants
    evidence;

2.       failing to consider the effect of the complainants        exaggeration
    of the frequency of sexual activity;

3.       failing to consider the
animus
of one of the           witnesses
    against the appellant; and

4.       failing to address the improbability that such           activity
    could go undetected in a crowded           household over many years.

[8]

We are not persuaded that the trial judge misapprehended the evidence. In
    our view, the appellant essentially asks us to retry this case. There is no
    basis to interfere with the trial judges findings of fact. Moreover, a
    misapprehension of evidence is not a reviewable error unless the error played
    an essential part not just in the narrative of the judgment but also in the
    reasoning process that resulted in a conviction:
R. v. Lohrer
, [2004]
    3 S.C.R. 732, at para. 2;
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193,
    at p.221.

[9]

The appellant has not demonstrated how what he seeks to characterize as
    erroneous factual findings played an essential role in the trial judges
    reasoning process that resulted in the conviction.

[10]

The appeal is dismissed.

Alexandra Hoy A.C.J.O.

"Doherty J.A."

"B.W. Miller J.A."


