



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. J.E., 2018 ONCA 1049

DATE: 20181218

DOCKET: C65794

Feldman, MacPherson and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.E.

Appellant

Margaret Bojanowska, for the appellant

Andrew Hotke, for the respondent

Heard and released orally: December 11, 2018

REASONS FOR DECISION

[1]

The appellant appeals from his conviction for
    assault and sexual assault.  The incidents occurred between the appellant and
    his girlfriend, who was pregnant. It was alleged that the appellant punched the
    complainant in the stomach on one occasion and then a month or two later forced
    sexual intercourse on her.

[2]

On the assault offence, the trial judge rejected
    the appellants explanation that the contact was accidental.  He was entitled
    to reach that conclusion on the evidence.

[3]

In terms of the sexual assault, this was
    inherently a credibility case.  The trial judge found that the complainants
    evidence regarding the sexual assault was confirmed by a witness, D.R., whom
    the trial judge believed.

[4]

Duty counsel raises concerns about the trial
    judges credibility conclusions regarding D.R. and asserted inadequacies in the
    reasons related to those conclusions.  While we accept that the trial judge
    might have given more detail in support of his conclusion that he believed
    D.R., the fact is that the trial judge heard and saw the witness and was in the
    best position to assess his evidence.  It is also of some importance that
    D.R.s evidence was essentially consistent on the central issue with the
    evidence of the complainant.

[5]

Determinations of credibility are inherently
    discretionary and absent a palpable and overriding error this court should not
    interfere.  No such palpable and overriding error is shown here.  Indeed as the
    Supreme Court of Canada said in
R. v. Dinardo
, 2008 SCC 24, [2008] 1
    SCR 788, at para. 26: Rarely will deficiencies in the trial judges
    credibility analysis as expressed in the reasons for judgment merit
    intervention on appeal.

[6]

In the end result, the reasons adequately
    explain why a conviction was made.  The appeal is dismissed.

K. Feldman J.A.

J.C. MacPherson J.A.

I.V.B. Nordheimer J.A.


