



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    the complainant or a witness shall not be published in any document or broadcast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. Horton, 2013 ONCA 735

DATE: 20131205

DOCKET: C56207

Doherty, LaForme and Pepall JJ.A.

Her Majesty the Queen

Appellant

and

Christopher Horton

Respondent

Philippe G. Cowle, for the appellant

Howard L. Krongold, for the respondent

Heard and released orally:  November 27, 2013

On appeal from the acquittals entered by Justice Sheppard
    of the Ontario Court of Justice, dated October 2, 2012.

ENDORSEMENT

[1]

The charges arose out of events that occurred some 20 to 25 years ago
    when the complainant was a young girl and the respondent was living with the
    complainant and her mother.  This was a straightforward three-witness case. 
    The outcome turned entirely on the trial judges assessment of the credibility
    and reliability of the witnesses, particularly the complainant and the
    respondent.  That assessment, of course, had to occur in the context of the
    well-known three-part test described in
R. v. W.D.

[2]

Despite Crown counsels vigorous argument, we are satisfied that the
    trial judge did consider all of the evidence and did assess both the
    complainant and the respondents evidence in the context of the entirety of the
    evidence.  The trial judge indicated he had done so on several occasions in the
    course of his reasons.

[3]

The trial judge did not reject the complainants evidence as unreliable
    because of the historical nature of the allegations or because her evidence was
    not confirmed in any way as it related to the actual alleged sexual
    misconduct.  Instead, the trial judge referred to these two things, among
    others, as factors that were relevant to his assessment of the entirety of the
    evidence.  He was correct in doing so.

[4]

We do not think that the trial judge ultimately rejected the
    complainants evidence.  Instead, he determined that he was unable to reject
    the respondents evidence to the degree necessary to be satisfied beyond a
    reasonable doubt.  This left him in the position described in the second arm of
    the
W.D.
test.  He correctly applied that test and the acquittals
    followed.  This case turned more on a failure of proof of guilt to the level
    required to establish guilt beyond a reasonable doubt than it did on a finding
    that the complainants evidence was unreliable or incredible.  The essence of
    the trial judges analysis is captured in his closing words:

This is not to say and I am not saying that things may well
    have happened to N.E. and that she was quite proper to disclose those to
    medical authorities.  This judgement stands for the proposition that it is
    always the states responsibility to prove those matters beyond a reasonable
    doubt if a criminal sanction is sought and they are unable to do so because of
    the historical nature of these allegations, I believe.

[5]

Counsel also argued that the reasons were so inadequate as to give rise
    to an error in law.  We cannot agree with this submission.  In our view, the
    trial judge made it clear that he was acquitting on the basis that the
    respondents evidence, considered in the context of the entirety of the
    evidence, left him with a reasonable doubt.  In our view, the trial judges
    reasons did permit appellate review.  Any complaints with those reasons beyond
    that do not give rise to an error in law.

[6]

The appeal must be dismissed.

Doherty J.A.

H.S.
    LaForme J.A.

S. Pepall J.A.




