



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    the complainant or a witness shall not be published in any document or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. Woollam, 2013 ONCA 711

DATE: 20131121

DOCKET: C56004

Goudge, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robin Woollam

Applicant/Appellant

Mark Sandler and Wayne Cunningham, for the appellant

Jennifer Crawford, for the respondent

Heard: November 1, 2013

On appeal from the judgment of the Summary Convictions
    Appeal Court dated August 17, 2012, by Justice Bruce Durno of the Superior
    Court of Justice, with reasons reported at 2012 ONSC 2188, dismissing the
    appeal from the conviction entered on November 24, 2010, by Justice Bruce W.
    Duncan of the Ontario Court of Justice.

By the Court:

[1]

The appellant, who is a family doctor, was convicted of the sexual
    assault of J.P. after a trial in the Ontario Court of Justice.  His appeal to
    the Summary Conviction Appeal Court (the SCAC) was dismissed.  He now seeks
    leave to appeal and, if leave is granted, appeals to this court.

[2]

Section 839(1) of the
Criminal Code
, R.S.C., 1985, c. C-46,
provides that a decision of the
    SCAC may, with leave of this court, be appealed on any ground that involves a
    question of law alone.  In
R. v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641,
    this court said, at para. 32, that leave may be granted in two different
    categories of case. First, where the merits of the proposed question of law are
    arguable, even if not strong, and the question of law has significance to the
    administration of justice beyond the particular case. Second, where there
    appears to be a clear error, even if that error does not have significance
    beyond the specific case.

[3]

Credibility was the central issue at trial.  J.P., who was a patient of
    the appellant, testified that the appellant sexually assaulted her when he
    conducted a follow-up examination of an ovarian cyst.  The appellant gave
    evidence and categorically denied any sexual assault.  The trial judge
    convicted the appellant on the strength of J.P.s evidence, the absence of any
    motive to fabricate her evidence, and her condition and conduct after the
    incident.

[4]

It is the trial judges, and the SCACs, treatment of J.P.s suspicions
    evidence that the appellant advances as the basis for leave to appeal to this
    court. J.P. had suspicions of circumstances that, after the alleged assault,
    she came to view as suggesting that the appellant was setting her up for the
    assault. The appellant argues that the trial judge erred in law by considering J.P.s
    suspicions evidence only in assessing her reliability, but failing to consider
    its impact on her credibility.  The appellant says that the SCAC also erred in
    law in finding that the trial judge did indeed consider J.P.s suspicions
    evidence in assessing her credibility.  The appellant argues that this failure
    to correct the trial judges misapprehension of the suspicions evidence is a
    clear error of law with grave professional consequences for him as a doctor. 
    Leave should therefore be granted even if the error has no significance beyond
    this case.

[5]

In our view, the question of law that is said to arise from the
    treatment of J.P.s suspicions evidence by the trial judge cannot be said to
    have significance to the administration of justice beyond this case.  It is a
    question about the particular treatment of particular evidence in a particular
    case.  It is thus the second paradigm in
R. v. R.R.
that is engaged.  To
    obtain leave to appeal to this court, the appellant must show that the
    treatment of J.P.s suspicions evidence constitutes a clear error of law which
    was, in effect, repeated by the SCAC.

[6]

In our view, the appellant cannot do so.  As the SCAC said, there is no
    dispute that the trial judge considered whether J.P.s evidence was credible.  Nor
    can there be any doubt that if the trial judge disregarded material evidence in
    assessing J.P.s credibility, he erred in law.  The question is whether he
    factored her suspicions evidence into his credibility analysis.

[7]

We agree with the SCAC that the trial judge did so.  He assessed J.P.s
    credibility as well as her reliability.  He clearly considered all the
    evidence, including her suspicions evidence, in coming to his ultimate conclusion. 
    There is nothing in the reasons of this experienced trial judge to explicitly
    indicate that he made the basic error of bifurcating the impact of the
    suspicions evidence and considering it only in relation to J.P.s reliability
    but not her credibility.

[8]

Indeed, the clear implication derived from the trial judges reasons as
    a whole is to the opposite effect.  The trial judge addressed the suspicions
    evidence.  He made clear that the important thing is whether he was prepared to
    draw any inferences about J.P.s testimony from that evidence.  He did not
    limit this task to inferences about J.P.s reliability alone.  He considered
    whether J.P.s suspicions evidence could indicate an over-active imagination or
    other weakness (which could well affect her credibility).  He concluded that
    J.P. had no motive to fabricate her allegation.  And in reaching his ultimate
    conclusion, one that encompassed his finding of J.P.s credibility, the trial
    judge expressly considered the whole of the evidence.

[9]

In summary, a fair reading of the entirety of the trial judges reasons
    leaves us in agreement with the SCAC.  We agree that the trial judge cannot be
    said to have excluded J.P.s suspicions evidence from his assessment of her
    credibility.  Despite Mr. Sandlers able argument, we see no clear error of law
    by the SCAC in coming to that conclusion.  It is the correct conclusion.  Nor
    do we accept that the trial judges assessment of J.P.s credibility was
    otherwise flawed in the ways urged by the appellant.

[10]

There
    is therefore no basis for granting leave to appeal to this court.  As a
    consequence, we need not deal with the several additional arguments advanced by
    the appellant on the assumption that leave is granted.

[11]

The
    motion for leave to appeal is dismissed.

Released: November 21, 2013 (S.T.G.)

S.T. Goudge J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.


