



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(1), (1.1), (2),
    or (3) of the
Criminal Code
shall
    continue.  These sections of the
Criminal Code
provide:

486(1)          Any proceedings against
    an accused shall be held in open court, but the presiding judge or justice may,
    on application of the prosecutor or a witness or own his or her own motion,
    order the exclusion of all or any members of the public from the court room for
    all or part of the proceedings, or order that the witness testify behind a
    screen or other device that would allow the witness not to be seen by members
    of the public, if the judge or justice is of the opinion that such an order is
    in the interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made, during
    the proceedings, to the presiding judge or justice or, before the proceedings
    begin, to the judge or the justice who will preside at the proceedings or, if
    that judge or justice has not yet been determined, to any judge or justice
    having jurisdiction in the judicial district where the proceedings will take
    place.

(2)     In determining whether the order
    is in the interest of the proper administration of judge, the judge or justice
    shall consider

(a) societys interest in encouraging the
    reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests of
    witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a
    full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order
    for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system
    participants who are involved in the proceedings;

(f) whether effective alternatives to the
    making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects
    of the proposed order; and

(h) any other factor that the judge or
    justice considers relevant.

(3)     If an accused is charged with an
    offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273,
    279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or
    the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, by reference to the circumstances of
    the case, the reason for not making an order.

(4) No adverse inference may be drawn
    from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
Supp.) s. 1;
    1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999,
    c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13,
    s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014,
    c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.




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. M.A., 2019 ONCA 190

DATE: 20190307

DOCKET: C65359

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.A.

Appellant

Sweta Tejpal, for the appellant

Rebecca De Filippis, for the respondent

Heard: February 28, 2019

On appeal from the conviction entered on April 21, 2017 by
    Justice Catrina D. Braid of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant submits that the trial judge misapprehended the evidence
    by failing to consider whether the complainants testimony was the product of
    life experiences and an after-the-fact reconciliation of dreams with actual
    events.

[2]

We do not accept this submission.  It was put to the trial judge and she
    carefully considered it.  In the end, the trial judge rejected the argument
    based on her assessment of the reliability of the complainants evidence and her
    finding that the complainants evidence had significant support in the rest of
    the testimony.

[3]

The appellant also argues that the trial judge misapprehended the
    evidence by considering the potential impact of the rumours evidence as part
    of the argument that the complainants alleged memories were, in fact,
    unreliable.  Again, we must disagree.  The trial judge, in our view, properly
    understood that the argument that the evidence that the complainants mother
    had told her about rumours of a sexual assault was one of the factors that
    had led the complainant to come to believe she had been assaulted.  The trial
    judge properly addressed this submission and rejected it.

[4]

We agree with the Crown that the appellants arguments are, in reality,
    a challenge to the reasonableness of the verdicts.

[5]

The allegations involved historical sexual assaults that occurred when
    the complainant was five or six years old.  This case turns largely on the
    trial judges assessment of the evidence of the complainant and the appellant
    and the application of the burden of proof to that assessment.  The trial judge
    gave reasons for accepting the complainants evidence.  She also gave several
    cogent reasons for rejecting the appellants evidence.  The verdicts were not
    unreasonable.

[6]

The appeal is dismissed.


