



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. J. N-Z., 2017 ONCA 335

DATE: 20170426

DOCKET: C61329

MacPherson, Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J. N-Z.

Appellant

Matthew R. Gourlay, for the appellant

Brett Cohen, for the respondent

Heard: April 18, 2017

On appeal from the conviction entered by Justice Katherine
    B. Corrick of the Superior Court of Justice on September 18, 2015, with reasons
    reported at 2015 ONSC 5795.

By the Court:

[1]

Following a judge alone trial, the appellant was
    convicted of a number of sexual offences involving a 10-year old male
    complainant.

[2]

The appellant was a hairdresser and came to the
    family's home to colour the complainant's mother's hair and also, on occasion, to
    cut other family members hair.

[3]

The complainant alleged increasing sexual
    misconduct, which he described as weird behaviour, over three discrete time
    frames: December 26, 2012 to August 5, 2013; August 6, 2013 (the day the family
    was preparing to leave on their annual trip to Bosnia); and October 21, 2013
    (the date of the complainant's disclosure). According to the complainant, on
    the last date, the appellant exposed himself to the complainant and tried to
    have the complainant touch his penis. The complainant then told his mother he
    did not want the appellant coming over anymore and disclosed the alleged
    misconduct. On being confronted, the appellant denied any impropriety and
    waited at the home until the police arrived.

[4]

At trial, contrary to his s. 715.1 video
    statement, in which he said the appellant had not exposed himself prior to the
    October 2013 incident, the complainant testified that the appellant had also
    exposed himself on August 6, 2013.

[5]

The trial judge convicted the appellant of
    sexual misconduct during the December 2012 to August 2013 time-frame, consisting
    of grabbing the complainant's buttocks; and of further misconduct on October 21,
    2013, including exposing himself to the complainant.

[6]

Concerning the August 6, 2013 incident, the
    trial judge found that the complainant's evidence was internally inconsistent
    and that, in addition, aspects of it were contradicted by the complainants
    younger brother's version of certain events. The trial judge therefore found
    the appellant not guilty of the offences relating to that date.

[7]

The appellant raises three issues on appeal.

[8]

First, the appellant argues that having found
    she could not accept the complainant's evidence regarding the August 6, 2013
    charges, the trial judge failed to explain how she could nonetheless accept the
    complainants evidence as establishing proof beyond a reasonable doubt with
    respect to the other counts. In particular, the appellant asserts that the
    trial judge failed to consider and give effect to the central discrepancy in
    the complainants evidence, therefore materially misapprehending the evidence.

[9]

Second, the appellant argues that the trial
    judge focused improperly on the complainant's credibility, mainly by relying on
    his demeanour, without adequately assessing his reliability.

[10]

Finally, the appellant argues that having taken
    account of the spontaneous nature of the complainant's disclosure and his demeanour
    in relation to the October 2013 incident, the trial judge erred by failing to
    consider the appellant's demeanour and response when confronted with the
    allegations.

[11]

We do not accept these submissions.

[12]

Immediately after finding the appellant not
    guilty of the August 6, 2013 charges, the trial judge adverted to the
    appellant's principal arguments concerning why that finding should affect her
    conclusion on the other charges.

[13]

She explained that she was impressed with the
    complainants evidence for a number of reasons, which included not only the
    spontaneous nature of his disclosure and his demeanour in relation to the October
    2013 incident, but also the fact that he did not appear to be vindictive or
    acting out of animosity to the appellant; that he, a child witness, seemed to
    be doing his best to recount details of the incidents that had occurred many
    months previously; that he provided significant detail regarding the October
    2013 incident; and that he acknowledged difficulty remembering certain things
    and guessing to fill in blanks. Moreover, despite the latter acknowledgments,
    the complainant did not recant the October 2013 allegations and the core of his
    allegations in relation to which the trial judge convicted the appellant
    remained intact. By way of contrast, the trial judge had earlier found that the
    complainant expressed some uncertainty in relation to the August 2013 events.
    Thus, contrary to the appellant's submissions, in our view, the trial judge
    explained the basis for her findings, and her reasons went well beyond reliance
    on the complainants demeanour.

[14]

As for the third issue, the trial judge was
    clearly aware of the appellant's responses to being confronted with the
    allegations. She adverted to his responses in her narrative of the events. It
    was entirely for the trial judge to determine whether to afford any weight to
    such responses.

[15]

The appeal is therefore dismissed.

J.C. MacPherson
    J.A.

Janet Simmons
    J.A.

David Brown J.A.


