



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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. R.C., 2017 ONCA 852

DATE: 20171107

DOCKET: C62392 & C62526

Simmons, van Rensburg and Nordheimer JJ.A

BETWEEN

Her Majesty the Queen

Respondent/Appellant

and

R.C.

Appellant/Respondent

John H. Hale for the appellant, R.C.

Michael Fawcett for the respondent, Her Majesty the
    Queen

Heard:  November 2, 2017

On appeal from the conviction entered on April 11, 2016
    and the sentence imposed on July 13, 2016 by Justice R. T. Knott of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for sexual interference. The Crown
    seeks leave to appeal sentence. The conviction appeal is allowed for the
    reasons that follow. It is unnecessary to address the sentence appeal.

[2]

The complainant was the 14 year old best friend of the appellant's
    daughter, M.D., who the appellant saw on alternate weekends. Following an
    evening during which the teenage girls had been drinking and partying at the
    appellant's apartment, M.D. awoke to find the complainant missing from the room
    where the girls had been sleeping. On searching the apartment, M.D. found the
    complainant asleep on the appellant's bed. The appellant was spooning the
    complainant; both were fully clothed. The appellant and the complainant both
    denied that any sexual contact had taken place.

[3]

About a month after the incident, M.D. contacted the police and gave a
    statement. This caused the police to interview the complainant, who then
    asserted that she and the appellant had intercourse on that occasion and on two
    prior occasions when she had visited M.D. at the appellant's apartment.

[4]

Taking account of the appellant's learning disability, his efforts at
    counselling and 20 months of house arrest bail, the trial judge sentenced the
    appellant to one year imprisonment (the mandatory minimum) and two years'
    probation.

[5]

The appellant appeals from his conviction. The Crown seeks leave to
    appeal the sentence imposed.

[6]

Much evidence was introduced at the trial regarding the appellants bad
    parenting.  Early in his reasons convicting the appellant,  the trial judge
    said:

There was so much troubling about this case I had to separate
    the bad parenting from the alleged criminal acts.

[7]

Notwithstanding that express intention, the trial judge then spent the
    next two full pages of his reasons, which only span about seven and one-half
    pages in total, detailing the evidence about the appellants bad parenting,
    which included purchasing significant quantities of alcohol for the girls;
    allowing them to party in the building with older men and bringing his eleven
    year old son to the trial
[1]
.

[8]

Particularly in light of the trial judges focus on the bad parenting
    evidence  and the sparseness of the balance of his reasons  reading his
    reasons as a whole, we cannot be satisfied that his evaluation of the appellants
    credibility , and of the likelihood that the appellant committed the acts
    charged, was not infected by this bad parenting evidence.  Put another way, we
    cannot be satisfied that the bad parenting evidence was not used to
    characterize the appellant as the type of person who engaged in improper conduct
    with his children (and the complainant) to the point that he would have engaged
    in the conduct that formed the basis of the charge.  That concern is heightened
    by the fact that the trial judge appears to have relied on the evidence of the
    appellant bringing various supporters to the trial as, in some fashion, bolstering
    the evidence of the complainant and M.D.

[9]

In so finding, we wish to make it clear that we do not accept the
    assertion by counsel for the respondent that this issue with the trial judges
    reasons amounts to an assertion of bias.  It does not.  It is more fairly
    characterized as an error of law like any number of other evidentiary errors
    that can occur in the course of a trial.

[10]

The appeal is allowed, the conviction is set aside and a new trial is
    ordered.

[11]

Given our conclusion on the conviction appeal, we do not need to address
    the sentence appeal.

Janet Simmons J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.





[1]

Although not raised by the appellant on appeal, we questioned
    the admissibility of the latter evidence. The Crown cannot legitimize
    cross-examination on matters wholly irrelevant to the issues at trial on the
    pretext that it goes to credibility. Otherwise there would be virtually no area
    that could not be explored at trial. Trial judges can and should intervene to
    stop such questioning even where no objection is raised.


