



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.




WARNING

An order restricting publication in this proceeding
    was made under s. 517 of the
Criminal Code
and continues to be in
    effect.  This section of the
Criminal Code
provides:

517(1)         If the
    prosecutor or the accused intends to show cause under section 515, he or she
    shall so state to the justice and the justice may, and shall on application by
    the accused, before or at any time during the course of the proceedings under
    that section, make an order directing that the evidence taken, the information
    given or the representations made and the reasons, if any, given or to be given
    by the justice shall not be published in any document, or broadcast or
    transmitted in any way before such time as

(a)     if a preliminary
    inquiry is held, the accused in respect of whom the proceedings are held is
    discharged; or

(b)     if the accused in respect of whom
    the proceedings are held is tried or ordered to stand trial, the trial is
    ended.

Failure to comply

(2)     Everyone who
    fails without lawful excuse, the proof of which lies on him, to comply with an
    order made under subsection (1) is guilty of an offence punishable on summary
    conviction.

(3)     [Repealed, 2005,
    c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st
    Supp.), s. 101(E); 2005, c. 32, s. 17.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.H.S., 2020 ONCA 584

DATE: 20200917

DOCKET: C66697

Fairburn A.C.J.O., MacPherson
    and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.H.S.

Appellant

J.H.S., appearing as self-represented

Andrew Furgiuele, appearing as duty
    counsel

Jessica Smith Joy, for the respondent

Heard via video conference:
    September 10, 2020

On appeal from a conviction entered by
    Justice Marc R. Labrosse of the Superior Court of Justice, dated March 25,
    2018, and the sentence imposed on February 25, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of one count of
    sexual assault and received a six-month custodial sentence. He appeals from
    conviction and sentence.

[2]

The appellant maintains that the trial judge
    erred in admitting the complainants video recorded statement as her in-chief testimony
    pursuant to s. 715.2 of the
Criminal Code
, R.S.C., 1985, c. C-46 (
Criminal
    Code
). His complaint is a narrow one.

[3]

The appellant acknowledges that all but one of
    the statutory prerequisites set out in s. 715.2 of the
Criminal Code
were
    met. For instance, he acknowledges that the complainant has a physical
    disability within the meaning of s. 715.2. (Among other physical challenges
    faced by the complainant, she is also legally blind.) Nor does he dispute that
    the complainant gave a video recorded statement to the police shortly after the
    alleged offence, in which she described the acts complained of.

[4]

The appellants argument rests solely on the
    suggestion that the trial judge erred when he concluded that the statutory
    prerequisite  that the complainant may have difficulty communicating her
    evidence by reason of her physical disability  was met.

[5]

The trial judge gave multiple reasons for why
    the statutory test had been met, including that the complainant could not
    prepare to give her evidence in the same way as a person without her physical
    disabilities. The trial judge concluded that the complainants inability to see
    would interfere with her proper preparation for giving evidence. The trial judge
    specifically pointed to the preliminary inquiry transcript as demonstrating
    that the complainant was in need of refreshing her memory and that, if the
    video was not used as her in-chief testimony, this would create a significant
    challenge for her because of her visual impairment.

[6]

In light of these circumstances, we find no
    error in the trial judges approach. Notably, the complainant was produced for
    a full cross-examination and no prejudice is alleged. We defer to the trial
    judge on this point.

[7]

The appellant also argues that the trial judge
    erred in precluding him from leading specific evidence pertaining to prior
    sexual history. While the appellant succeeded on his s. 276
Criminal Code
prior sexual activity application as it related to one prior incident, he was
    denied the opportunity to elicit evidence about another incident. The trial
    judges ruling in this respect is detailed and explains why the evidence was
    irrelevant to the proceedings. The trial judge properly summarized and applied
    the law. We find no error in his approach.

[8]

Nor do we accede to the suggestion that the
    verdict was unreasonable. The trial judge gave lengthy reasons for judgment. He
    reviewed and correctly applied the principles from
R. v.
W.(D.)
[1991] 1 S.C.R. 742
. The trial judge also
    explained his credibility findings. We owe deference to those findings.

[9]

The appellant also argues that the trial was
    unfair. We see nothing in the record to support this claim.

[10]

The appellant has already served his sentence.
    It was not unreasonable given the aggravating circumstances involved, including
    the vulnerability of the complainant. It appears that the appellants real
    complaint is with the mandatory, statutory s. 490.012(1)
Criminal Code
order
    that was imposed. We would not give effect to this submission. It is a
    mandatory order.

[11]

The conviction appeal is dismissed. Leave to
    appeal sentence is granted, but the sentence appeal is dismissed.

Fairburn
    A.C.J.O.

J.C.
    MacPherson J.A.

S.
    Coroza J.A.


