



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)       REPEALED: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    information that could identify the victim shall not be published in any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. A.P., 2018 ONCA 642

DATE: 20180717

DOCKET: C62944

Benotto, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.P.

Appellant

A.P., acting in person

Lorna Bolton, for the respondent

Ingrid Grant, duty counsel

Heard and released orally: July 12, 2018

On appeal from the conviction entered on May 30, 2016 by
    Justice Robert Wadden of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

A.P. was found guilty of sexual interference with a person under the age
    of 14 years. This was in relation to the daughter of his wifes cousin.

[2]

The complainant alleged that on one of the many occasions when she slept
    over at the appellants home, the appellant touched her vagina while she was on
    a mattress in the living room sleeping with his two young sons.

[3]

The appellant denied the allegations. His son testified in support of
    his father and denied being told about the incident the following morning as
    the victim had testified.

[4]

Ms. Grant, as duty counsel, advanced a number of grounds of appeal on
    the appellants behalf. She says that the trial judge only considered the
    complainants credibility and not also her reliability. In our view, the trial judges
    reasons as a whole demonstrate that he considered both dimensions of
    trustworthiness, and his reasons were responsive to the arguments advanced by
    defence counsel at trial. Further, we do not accept that the trial judge
    mischaracterized the evidence. The nuances in the evidence of the appellant and
    his son were dealt with adequately by the trial judge.

[5]

Ms. Grant submits that the trial judge unfairly characterized the
    appellants evidence about the mattress issue by saying that he was adamant in
    his denials. We disagree. Given the appellants answer when shown his sons
    detailed sketch of the living room which depicted the mattress, the trial judge
    was entitled to characterize the appellants evidence in this way.

[6]

Ms. Grant also suggests that the trial judge erred when he found that
    the appellant tailored his evidence on the mattress issue likely because it
    would be exculpatory. While the trial judges language was unfortunate, we are
    not satisfied that he reversed the burden of proof, especially when read in the
    context of the reasons as a whole. The trial judge accepted the evidence of the
    appellants son as reflected in the sketch that he prepared, and he clearly
    rejected the appellants claim that he could not remember. The trial judge was
    entitled to find that the appellants credibility was damaged as a result. It
    was open to the trial judge to make the credibility findings as he did.
    Accordingly, we see no basis on which to interfere.

[7]

The appeal from conviction is dismissed.

M.L. Benotto J.A.

Gary T. Trotter J.A.

David M. Paciocoo
    J.A.


