



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    that could identify the complainant or a witness shall not be published in any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. M.A., 2017 ONCA 504

DATE: 20170615

DOCKET: C61519

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. A.

Appellant

Jill R. Presser and Andrew Menchynski, for the appellant

Megan Stephen, for the respondent

Heard: June 14, 2017

On appeal from the conviction entered on June 23, 2015
    and the sentence imposed on November 27, 2015 by Justice Jeanine E. Leroy of
    the Ontario Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his conviction and his sentence. On his conviction
    appeal he makes two submissions. First, the trial judge erred in her similar
    fact ruling when she dealt with the question of collusion. Second, the trial
    judge unevenly scrutinized the evidence of the complainants and the evidence of
    the appellant.

[2]

The appellants first submission has two branches: the trial judge did
    not advert to the possibility of innocent collusion; and the trial judge made a
    factual error when she found that the children did not discuss the details to
    any great extent. The appellant contends that the trial judge should have
    found the childrens evidence was tainted by collusion and should have dismissed
    the Crowns similar fact application.

[3]

We called on the Crown only on the second branch of the appellants
    submission.

[4]

On the first branch, the trial judge expressly referred to the
    possibility of innocent or accidental collusion, and her reasons for finding no
    tainting show that she considered the possibility of both intentional and
    accidental collusion.

[5]

On the second branch of the appellants submission, or our reading of
    the transcript references referred to by counsel, the trial judges findings on
    the extent of the discussions between the children, itemized at points 2 and 3
    at p. 52 in her reasons, are supported in the record. She made no palpable and
    overriding error in her findings.

[6]

Admittedly, the children did discuss some details. That they did so is
    implied in the trial judges findings by her use of the phrase to any great
    extent.

[7]

We agree with the Crown that the situation in this case is very much
    like the situation in
Shearing
. There, Justice Binnie recognized at
    para. 42-43 that some communication is inevitable but, as in that case, here it
    was not sufficient to trigger the trial judges gatekeeper role or interfere
    with her ruling. Thus the appellants first submission must fail.

[8]

So too must the appellants second submission. The appellants defence
    of shady business dealings defied credulity and was belied by the corporate documents.
    The trial judge was right to reject his evidence.

[9]

The trial judge did not ignore the inconsistencies in the male complainants
    evidence. She was of the view they did not affect the male complainants
    credibility. That was her call to make. For us to interfere would be to retry the
    case

[10]

We
    therefore dismiss the conviction appeal.

[11]

On
    the sentence appeal, for the reasons set out in the Crowns factum, the
    sentence was fit. The sentence appeal is therefore also dismissed.


