



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. D.B., 2021 ONCA 679

DATE: 20211006

DOCKET: C68523

MacPherson, Roberts and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.B.

Appellant

Michael A. Crystal, for the appellant

Natalya Odorico, for the respondent

Heard: September 28, 2021 by
    video conference

On appeal from the conviction entered on
    September 4, 2019 by Justice Martin S. James of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his convictions for two
    counts of touching his stepdaughter, A.G., for a sexual purpose, contrary to s.
    151 of the
Criminal Code
, when she was between 10 and 14 years of age,
    during the period 1996 to 2002. The appellant disputes all allegations. He did
    not testify at trial.

[2]

The appellant submits the trial judge
    misapprehended important evidence that supported the defence, failed to
    reconcile material inconsistencies in the evidence, unevenly scrutinized the
    Crown and defence evidence, and failed to provide adequate reasons. He asks for
    a new trial.

[3]

We do not agree that the trial judge made any
    reversible error.

[4]

At the end of the four-day judge-alone trial, the trial judge gave
    detailed oral reasons in which he thoroughly reviewed the relevant evidence in
    accordance with the parties submissions and the applicable legal principles.
    As the trial judge was required to do, he focused his analysis on the material
    inconsistencies in the trial evidence. As appellants counsel fairly
    acknowledged, the trial judge was not obliged to reconcile every inconsistency.
    The trial judge did not unfairly scrutinize the evidence but explained,
    correctly in our view, why the identified inconsistencies in A.G.s evidence
    did not detract from her credibility or reliability as a witness.

[5]

In particular, we are not persuaded by the appellants principal submissions
    on appeal that the trial judge erred in his assessment of the evidence
    concerning a letter that A.G. wrote and left for her mother, L.G., to find in
    2001 when she was 14 years old in which she alleged that the appellant had
    sexually abused her. The letter was not put into evidence; A.G. and L.G.
    testified about their recollections of its contents.

[6]

First, that the trial judge indicated that the letter was found in
    A.G.s desk drawer, which is where A.G. said she left it, rather than in her
    dresser drawer, as her mother testified, is of no moment. The trial judge was
    alive to the defence theory that A.G. made false allegations and wanted her
    mother to find the letter so that the appellant would be removed from their
    home. And this is exactly what ensued: the mother found and read the letter,
    confronted the appellant, and the appellant left the house until the mother
    permitted him several weeks later to return.

[7]

Further, we do not accept that the trial judge applied inappropriate
    stereotyping to the mothers emotional reaction in reading A.G.s allegations.
    The trial judge determined that the mother could not remember the same details
    about the letters contents that A.G. was able to recount because, in part, she
    was startled and overwhelmed by them. The trial judges assessment was
    reasonable and reflected the mothers evidence that she was devastated by the
    letter that contained allegations about her partner sexually abusing her
    daughter.

[8]

In their essence, the appellants submissions amount to a request that
    this court redo the trial judges findings of fact and reweigh the trial
    evidence. That is not the function of this court. We see no error that warrants
    appellate intervention.

Disposition

[9]

For these reasons, we dismiss the appeal.

J.C. MacPherson
    J.A.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.


