


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    that could identify the complainant or a witness shall not be published in any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. Curtis, 2012
    ONCA 490

DATE: 20120711

DOCKET: C53530

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Albert Curtis

Appellant

Brian H. Greenspan and Jill Makepeace, for the appellant

Robert Gattrell, for the respondent

Heard: July 5, 2012

On appeal from the conviction entered on February 16,
    2011 by Justice Bryan Shaughnessy of the Superior Court of Justice, sitting
    without a jury.

ENDORSEMENT

[1]

The appellant, Albert Curtis, appeals against his conviction of sexually
    assaulting, and sexually interfering with, his 15 year old music student.

[2]

Although the appellant raised several grounds of appeal in his factum,
    during oral argument, the appellant narrowed the focus of his submissions,
    arguing that the trial judges treatment of the evidence of the appellants
    wife, which, if accepted, would have essentially exonerated the appellant, was
    unfair and illogical, and that the trial judge therefore committed a reversible
    error.  See
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (C.A.), at para.
    59.

[3]

The assault occurred in the basement of the Curtis home in August of
    2008.

[4]

The evidence of the complainant was that, except for her and the
    appellant, no one was home when the assault occurred. The assault was noisy and
    violent. The house was a small, fairly open-concept, side split bungalow.  At
    the time, the appellant and his wife had an infant, no more than 30 days old,
    two other children, one of whom is autistic, and two dogs. Had anyone been
    home, they would have heard the assault.

[5]

The evidence of the appellants wife, Rebecca Curtis, was that during
    August 2008 she did not leave the house, except in the company of the
    appellant. Ms. Curtis evidence therefore provided the appellant with the
    equivalent of a complete alibi.

[6]

The trial judge rejected Ms. Curtis evidence as wholly incredible, unreliable
    and untrustworthy. He provided several reasons for doing so. These included
    that Ms. Curtis was a very troubled woman. The trial judge wrote:

... I am nevertheless troubled by the degree of secrecy that
    Albert Curtis and Rebecca Curtis operated in relation to their life together.
    There is a very troubled relationship wherein she carries a child full-term,
    apparently without his knowledge, and then takes a taxi to the hospital early
    in the morning and gives birth to the child in March, 2005, and immediately
    arranges an adoption from the hospital.

Thus, on her own evidence, Ms. Curtis acknowledged
    that she was capable of deception.

[7]

He also found that some of her evidence appeared rehearsed.  He
    concluded that, despite her claim to the contrary, she requires assistance from
    the appellant to look after her family and was attempting to help her husband
    in his defence.

[8]

In our view, there was an evidentiary basis for the trial judges
    finding that Ms. Curtis was not credible or reliable. The wife had engaged in
    deceit, sustained subterfuge and bizarre behaviour. In addition to the
    undisclosed pregnancy, the wife sent an email directly to the complainant when
    the complainant was only 13 years of age, telling her to stay the hell away
    from my husband .  There was evidence that the police had told the wife of
    the charges against the appellant, and asked her questions about the
    complainant, at the time the wife first volunteered the alibi. On the evidence
    as a whole, the inference drawn by the trial judge that the wife was tailoring her
    evidence to help her husband was not unreasonable. Given the context, the trial
    judge did not, in our view, treat Ms. Curtis evidence unfairly or subject it to
    an unreasonably high standard of scrutiny.

[9]

We are not persuaded that the trial judge committed a reversible error,
    and accordingly dismiss the appeal.

John Laskin J.A.

E.A. Cronk J.A.

Alexandra Hoy J.A.


