



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    that could identify the complainant or a witness shall not be published in any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. L.V.B., 2014 ONCA 522

DATE: 20140704

DOCKET: C55589

Feldman, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L. V. B.

Appellant

Heather Pringle, for the appellant

Sean Doyle, for the respondent

Heard and released orally: June 24, 2014

On appeal from the conviction entered on November 22,
    2011 by Justice Richard C. Gates of the Superior Court of Justice, sitting
    without a jury.

ENDORSEMENT

[1]

After a trial before a judge sitting without a jury, the appellant was
    found guilty on counts of invitation to sexual touching and sexual assault.
    Both counts related to a single incident. The sexual assault finding was stayed
    on the basis of
Kienapple v. R.
,
    [1975] 1 S.C.R. 729.


[2]

The appellant raises several grounds of appeal alleging a variety of
    errors in the reasoning process the trial judge followed in reaching his
    conclusion that the Crown had proven its case beyond a reasonable doubt.  In
    the view we take of this case, it is necessary to consider only one ground of
    appeal advanced by Ms. Pringle in her submissions.

[3]

Ms. Pringle contends that the trial judge misapprehended parts of the
    appellants evidence about the day on which the complainant said the alleged conduct
    occurred. This error about the substance of the material parts of the evidence,
    Ms. Pringle says, played an essential part in the trial judges reasoning
    process that resulted in the findings of guilt. It follows, she submits, that
    the conviction is not based exclusively on the evidence adduced at trial and
    should be set aside.

[4]

For all practical purposes this was a two witness case.

[5]

The complainant testified that while she and the appellant were alone in
    their home, the appellant called her upstairs to the bedroom, put her hand on
    his penis and rubbed it in a circular motion for several minutes.

[6]

The appellant testified in his own defence. He denied the allegations
    entirely.

[7]

In his reasons for judgment, the trial judge made several references to
    admissions or acknowledgements in the appellants evidence, which, the
    judge said, reinforced the complainants testimony about the offence charged. For
    example, the trial judge found:

On the day of the offence the accused acknowledged that he and [the
    complainant] were alone in the house watching television while [her brother]
    was outside and her mother and [her sister] were shopping. After he went upstairs
    to his bedroom he called her to tickle his back. This acknowledgement by him
    reinforced her credibility.



On the day in question he testified that he and [the
    complainant] had been alone in the house watching television. After he had gone
    upstairs for a nap he called downstairs for [the complainant] to come and give
    him a massage. He lay on his side of the bed while she was on the other side
    where his wife slept.



...he did in effect admit that he was lying on the bed under a
    blanket, naked, and that on many occasions he has received backrubs hes been
    similarly naked. There was no explanation given by him as to why, if he was
    anticipating a request to receive a backrub he could not have put on his pants
    or at least his underwear. He later stated that he had no recollection of the
    incident.



(he) admitted there were times when he was naked, including on
    the day in question, while lying on the bed, although covered with a blanket.

[8]

For the respondent, Mr. Doyle concedes that the trial judge misapprehended
    parts of the appellants evidence in relation to the events on the date of the
    alleged offence. The result, Mr. Doyle acknowledges, was that the trial judge
    misunderstood that the appellant had not acknowledged:


i.

that he was alone with the complainant on the date of the alleged
    offence;


ii.

that he asked the complainant to give him a massage; and


iii.

that he was naked under a blanket at that time.

[9]

Mr. Doyle also concedes that these misapprehensions of the evidence
    factored into the trial judges credibility assessment. The trial judge
    considered that these admissions and acknowledgments reinforced the
    credibility of the complainant and the reliability of her evidence.

[10]

The
    trial judge offered several reasons for rejecting the appellants evidence and
    finding that it did not raise a reasonable doubt about the appellants guilt. That
    said, it was then incumbent on the trial judge to determine, on the evidence he
    did accept, whether he was satisfied beyond a reasonable doubt of the
    appellants guilt.

[11]

In
    reaching his conclusion, the trial judge used what he erroneously characterised
    as the appellants admissions and acknowledgments as a make-weight to
    buttress the testimony of the complainant and to satisfy the burden and meet
    the standard of proof. He was wrong to have done so. And that error vitiates
    his findings of guilt.

[12]

In
    light of our conclusion on this ground of appeal, we do not consider it
    necessary or advisable to consider the other grounds of appeal advanced by Ms.
    Pringle.

[13]

For
    these reasons, the appeal is allowed, the conviction and stay set aside, and a
    new trial ordered.

K.
    Feldman J.A.

David
    Watt J.A.

C.W.
    Hourigan J.A.


