



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    that could identify the complainant or a witness shall not be published in any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. M.T., 2017 ONCA 505

DATE: 20170616

DOCKET: C61749

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.T.

Appellant

Mark Halfyard, for the appellant

Luke Schwalm, for the respondent

Heard and released orally: June 14, 2017

On appeal from the conviction entered on September 15,
    2015 by Justice McKelvey of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for indecent assault, an historical
    sexual assault, on the ground that the verdict was unreasonable. The appellant
    contends that the verdict was unreasonable because the complainants evidence
    about when the assault occurred was unreliable.

[2]

The timeline is important. The count in the indictment was particularized
    as occurring between January 1, 1977 and December 1, 1983. The complainant was
    born on January 14, 1971. She gave evidence that the indecent assault occurred
    when she was between seven and nine years old, that is between January 1978 and
    January 1981. But she acknowledged that her memory of the timing was hazy.
    The offence of indecent assault was repealed by Parliament on January 4, 1983
    just before the complainants twelfth birthday. The appellant thus submits that
    a reasonable trier of fact could not be satisfied beyond a reasonable doubt
    that the offence did not occur in the eleven month period from January 1983 to
    December 1983, which would have rendered it a nullity.

[3]

We do not accept the appellants submission. The trial judge was alive
    to the reliability of the complainants evidence. And he concluded that the complainants
    acknowledgement of her hazy memory was reflected in her estimate that the
    incident occurred when she was between seven and nine years old. He wrote at
    para. 44 of his reasons:

I accept F.T.s evidence that the initial incident occurred
    when she was approximately seven to nine years old. While it is true that her
    recollection of the exact time is hazy, this is reflected already in the
    estimate she gave that the initial incident occurred between age seven and nine
    years old. The witness therefore has accounted for the lack of precision in her
    memory by giving the estimate she did at trial. She would have turned ten on
    January 14, 1981 and I do not accept that her estimate could have been out by
    almost two years so that the incident would have occurred at age twelve. This
    would conflict with her recollection that the second incident occurred at
    around age twelve.

[4]

We see no error in the trial judges
    analysis. We note as well that the defence never suggested to the complainant
    that the assault may have occurred when she was 12 years old. The verdict is
    reasonable. The appeal is therefore dismissed.

John Laskin J.A.

Janet Simmons J.A.

G. Pardu J.A.


