



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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. C.C., 2017 ONCA 656

DATE: 20170816

DOCKET: C59281

Doherty, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.C.

Appellant

Ekaterina Perchenok, for the appellant

Kevin Rawluk, for the respondent

Heard and released orally:  August 14, 2017

On appeal from the conviction entered on June 26, 2013 by
    Justice Manjusha Pawagi of the Ontario Court of Justice, and the sentence
    imposed on October 31, 2013.

REASONS FOR DECISION

The Conviction Appeal

[1]

The appellant had sexual intercourse with his 15-year old babysitter.  He
    claimed that he believed she was 16.  The trial turned on whether the Crown had
    proved beyond a reasonable doubt that the appellant did not take all
    reasonable steps to ascertain the complainants age.  The trial judge found
    that the Crown had met its burden.  She fully summarized the evidence in her
    reasons.

[2]

There is one ground of appeal from conviction.  The appellants submits
    that he did not receive effective legal assistance at trial.  The claim rests
    on a single allegation.  The appellant submits that counsel should have taken
    custody of his spouses MicroSD card (the card) containing a message from a
    friend said to indicate that the complainant was 16.  A purported printout of
    that message had been introduced at trial.  The trial judge declined to accept
    that evidence, finding that the makeup and contents of the message rendered the
    tendered evidence unreliable.

[3]

Counsel submits that forensic testing of the card may have demonstrated
    the reliability of the tendered evidence.  According to the fresh evidence, the
    appellant offered the card to trial counsel, but trial counsel advised the
    appellant to keep the card and did not take any steps to have it analyzed.

[4]

To succeed on a claim of ineffective assistance, the appellant must show
    first, that trial counsel was incompetent and, second, that the alleged
    incompetence caused a miscarriage of justice.  The second requirement referred
    to as the prejudice component is best dealt with first.

[5]

The appellant offers no basis for a finding that he was prejudiced by
    the alleged ineffective assistance.  Assuming that trial counsel should have
    had the card forensically examined, there is no evidence that the examination
    would have assisted the defence of the appellant, and no evidence of any
    attempt to have the card examined after the trial, although the appellant had
    access to it.

[6]

In addition, the trial judge made it clear that even if she had accepted
    the
bona fides
of the message received by the appellants wife
    indicating that the complainant was 16, the trial judge would still have
    concluded that, in the circumstances, the Crown had proved beyond a reasonable
    doubt that the appellant did not take all reasonable steps to determine the
    complainants age.  The trial judge gave full reasons supporting that
    conclusion.

[7]

There is no basis to hold that counsels failure to have the card
    examined had any effect on the verdict.  The appellant has not demonstrated prejudice. 
    This ground of appeal fails and the conviction appeal is dismissed.

The Sentence Appeal

[8]

The appellant seeks to appeal only the s. 161(1)(c) order as it
    applies to his own children.  However, the Crown has pointed out that the
    relevant provisions in the section came into effect after the offences were
    committed.  Consequently, s. 161(1)(c), or at least the relevant
    non-communication provision does not apply to the offences:  see
R. v. K.R.J.
,
    2016 SCC 31.  The s. 161(1)(c) order is struck.  Otherwise, the sentence
    stands.


Doherty J.A.

R.A. Blair J.A.

Paul Rouleau J.A.


