



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. W.W.A., 2017 ONCA 928

DATE: 20171130

DOCKET: C55461

Feldman, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.W.A.

Applicant/Appellant

Joseph S. Wilkinson, for the appellant

Michelle Campbell, for the respondent

Heard and released orally: November 23, 2017

On appeal from the conviction entered on September 8,
    2011 and the sentence imposed on June 11, 2012 by Justice Catherine Kehoe of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault of his 14 year old niece.
    It was agreed that he visually examined her vagina. He denied touching her. The
    trial judge accepted the evidence of the complainant and concluded that he
    touched her for a sexual purpose. He appeals on the basis of ineffective
    assistance of counsel.

[2]

The first issue to be determined is that of prejudice. As stated by the
    Supreme Court of Canada in
R. v. B. (G.D.)
, 2000 SCC 22, at para. 29: In
    those cases where it is apparent that no prejudice has occurred, it will
    usually be undesirable for appellate courts to consider the performance
    component of the analysis.

[3]

The appellant submits that trial counsel was ineffective because he:

(a)

did
    not explore the issue of the mothers violent alcoholism resulting in a difficult
    relationship with the complainant, to explain why she would turn to her uncle
    for help; and

(b)

did
    not cross-examine the complainants sister to establish that because of her
    animus toward the appellant, she encouraged the complainant to go to the police
    and to embellish her story.

[4]

In our view, these issues do not satisfy the prejudice requirement. The
    childs difficult relationship with her mother would not have informed the
    critical issue in the case  was there touching? The sisters evidence was
    problematic for the appellant as it risked opening the door to allegations of
    similar acts.

[5]

As the appellant has not satisfied the prejudice requirement of the test
    for ineffective assistance, consequently, we do not need to consider the
    performance component of counsels assistance.

[6]

We see no error in principle with respect to the trial judges
    determination of sentence. It is acknowledged that a five month sentence is
    within the appropriate range.

[7]

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

K. Feldman J.A.

M. Tulloch J.A.

M.L. Benotto J.A.


