



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    that could identify the complainant or a witness shall not be published in any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. D.L., 2014 ONCA 208

DATE: 20140319

DOCKET: C55640

Sharpe, Gillese and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.L.

(Applicant/Appellant)

Richard Litkowski, for the appellant

Jennifer Mannen, for the respondent

Heard & released orally: March 12, 2014

On appeal from the conviction entered by Justice Christopher
    Corkery of the Superior Court of Justice, dated July 9, 2012.

ENDORSEMENT

[1]

This is an appeal from convictions for historical sexual assault and
    sexual interference.

[2]

The appellant submits that the trial judge erred in his approach with
    respect to contradictions between the complainant and her mother as to
    disclosure and second, that the trial judge failed to analyse and reconcile
    other inconsistencies in the complainants account. The third ground regarding the
    use of evidence of alleged prior discredible conduct was not pursued in oral
    argument.

[3]

The complainants mother testified that the complainant had disclosed
    one of the incidents of alleged abuse to her several years after it occurred
    and not long before the appellants arrest. The complainant denied that she had
    done so.

[4]

We do not agree that the trial judge erred in the way he dealt with this
    contradiction between the complainant and her mother.

[5]

He concluded that the contradiction did not compromise the complainants
    credibility or reliability, essentially for two reasons:

1)

If the disclosure did
    occur, it would be consistent with the incident of sexual assault having
    occurred; and

2)

The contradiction
    could readily be explained by the context, namely, a complainant who was
    reluctant to come forward and who had wished to put the entire matter behind
    her.

[6]

In our view, the first reason did not amount to using the complainants
    prior consistent statement to bolster her credibility: the trial judge was
    simply observing that there was no incentive for the complainant to falsely
    deny the disclosure as, if she did disclose, it would be consistent with her
    trial evidence. The second reason led the trial judge to conclude that the
    complainant may have suppressed the disclosure rather than lied about it.

[7]

Nor do we agree that the trial judge ignored or failed to give scrutiny to
    other inconsistencies. His reasons reveal that he was alive to those
    inconsistencies and that he did carefully scrutinize them. He properly
    considered those inconsistencies and viewed them in the light of the fact that
    these were historic allegations involving a young person who, as an adult, wanted
    to put the entire matter behind her.

[8]

We add that there was some independent evidence to corroborate the
    complainants story.

[9]

Accordingly, despite the very able argument of Mr. Litkowski, the appeal
    is dismissed.

Robert J. Sharpe J.A.

E.E.
    Gillese J.A.

Paul
    Rouleau J.A.


