



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    that could identify the complainant or a witness shall not be published in any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. C.C.F., 2014 ONCA 327

DATE: 20140425

DOCKET: C56777

Weiler, Feldman and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.C.F.

Appellant

Constance Baran-Gerez, for the appellant

Matthew Asma, for the respondent

Heard and released orally: April 23, 2014

On appeal from the conviction entered on November 30,
    2012 by Justice Geoffrey Griffin of the Ontario Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant was charged with one count of sexual assault and one count
    of sexual interference. The sexual assault charge was conditionally stayed, but
    he was convicted on the sexual interference charge. He appeals his conviction.

[2]

The case turned largely on the evidence given by the complainant, the
    daughter of the appellant, who was seven years old at the time of the trial.
    The appellant submits that the trial judge failed to comply with s. 16.1(6) of
    the
Canada Evidence Act,
R.S.C. 1985, C. C-5 as amended, enacted as
    S.C. 2005, c. 32, s. 27, which states:

(6) The court shall, before permitting a
    proposed witness under fourteen years of age to give evidence, require them to
    promise to tell the truth.

[3]

The respondent submits that the trial judge complied with s. 16.1(6) and
    relies on the following exchange which took place during the inquiry conducted
    by the trial judge to determine if the complainant was able to understand and
    respond to questions.

The Court:  Do you know what it is, the difference between the
    truth and not telling the truth?

Witness: Yep.

The Court: Okay. And it is important to me that you tell me the
    truth because I have to make decisions. I want to make sure people are telling
    me the truth. Okay?

Witness: Okay.

[4]

The trial judge did not explicitly ask the witness to promise to tell
    the truth.

[5]

No particular words are required to comply with s. 16.1(6) of the
Evidence
    Act
, so long as the witness has clearly committed to tell the truth. After
    the trial judge brought home to the complainant the importance of telling the
    truth, she said O.K. Neither counsel raised any objection to the reception of
    the complainants evidence on the basis that she had not committed to tell the
    truth. The

trial judge recorded in his reasons that she had promised
    to tell the truth and stated in his reasons that the complainant appeared to
    understand the serious and solemn nature of what she was involved with, namely
    a criminal trial.

[6]

The exchange between the trial judge and the complainant was sufficient
    to comply with s. 16.1(6) of the
Evidence Act
, because the complaint
    committed to tell the truth in court
.

[7]

Accordingly the appeal is dismissed.

K.M.
    Weiler J.A.

K.
    Feldman J.A.

E.E. Gillese J.A.


