



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    that could identify the complainant or a witness shall not be published in any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. R.F., 2012
    ONCA 419

DATE: 20120620

DOCKET: C49682

MacPherson, Armstrong and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R. F.

Applicant/Appellant

Nicholas A. Xynnis, for the appellant

Michael Bernstein, for the respondent

Heard: June 15, 2012

On appeal from the conviction entered on March 10, 2008
    and the sentence imposed on May 23, 2008 by Justice Guy P. DiTomaso of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of 2 counts of break and enter, 1 count of
    sexual assault and 2 counts of criminal harassment by DiTomaso J. of the
    Superior Court of Justice on March 10, 2008.  He received a global sentence of
    4 years. He appeals against his convictions only. He also seeks to admit fresh
    evidence.

[2]

He raises 4 grounds of appeal.  Firstly, he submits that the court erred
    in ordering that counsel be appointed to cross-examine the complainant. 
    Secondly, the appellant submits that there was an appearance of unfairness
    arising from the respondents role in securing counsel to cross-examine the
    complainant. Thirdly, the appellant submits that his right to counsel was
    compromised by the compensation ordered for the appointed counsel.  Lastly, the
    appellant submits that the verdicts were unreasonable and the trial judge erred
    in his assessment of credibility and reliability.

[3]

We see no merit in these grounds of appeal. The first three grounds are
    raised for the first time on this appeal and could have and should have been
    raised at trial. The charges were laid in January, 2006. Over the course of
    many months, the appellant repeatedly requested adjournments and advised the
    court that he intended to and was in the process of retaining counsel for his
    trial but he never did. As stated by Graham J. of the Superior Court of Justice
    on September 12, 2007, the appellant presented a number of vague and
    unconvincing excuses for not having done so.

[4]

No objection was taken to the respondents application for the
    appointment of counsel to cross-examine the complainant or the evidence filed
    in support or the proposed rate of compensation for counsel. The appellant did
    not express a desire to cross-examine the complainant himself and at trial, the
    appointed counsel cross-examined the complainant without objection. There is no
    allegation of incompetence of the appointed counsel. There was an adequate
    evidentiary basis for the appointment order. In addition to the affidavit filed
    in support of the application, the presiding judge had the indictment which
    included two counts of harassment. The court established the rate of
    compensation to be paid, not the respondent, and there was no appearance of
    unfairness. The trial record does not disclose any compromise of any right to
    counsel.

[5]

As for the fourth ground of appeal, namely that the verdicts were
    unreasonable and the trial judge erred in his assessment of credibility and
    reliability, the trial judge delivered 98 pages of detailed oral reasons.  He
    carefully considered the credibility and reliability of the complainant and
    believed her evidence. He considered the complainants conduct and accepted her
    explanations for why she did what she did and was satisfied that the respondent
    had established the appellants guilt beyond a reasonable doubt in respect of
    all counts. We see no error.

[6]

The appeal is dismissed.

J. C. MacPherson J.A.

Robert
    P. Armstrong J.A.

S.
    E. Pepall J.A.


