



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    that could identify the complainant or a witness shall not be published in any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. P.L., 2015 ONCA 404

DATE: 20150605

DOCKET: C56976

Hoy A.C.J.O., Doherty and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.L.

Appellant

R. Sheppard, for the appellant

Avene Derwa, for the respondent

Heard and released orally: May 22, 2015

On appeal from the conviction entered on December 6, 2012
    by Justice John A. Desotti of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of sexually assaulting his step-daughter
    while she was visiting home from university.

[2]

The evidence was that she was sleeping by the fireplace on a pull-out
    mattress in the den. She awoke to find the appellant touching her vagina. The
    appellant said he was just stoking the fire and denied touching her.

[3]

The following morning, the complainant, her boyfriend, and her mother
    confronted the appellant. The content of their discussion factors into the
    grounds for appeal.

[4]

The appellant submits that the trial judge erred in two respects: 1) by
    relying on the appellants convoluted testimony and lack of clarity to reject
    his evidence; and 2) by referring to the mothers testimony about the
    appellants thoughts in connection with her daughter.

Lack of clarity

[5]

The trial judge rejected the appellants testimony in part because of
    what he termed a rambling and confusing account of what transpired the
    morning after the event. The trial judge quoted from an answer the appellant
    gave to demonstrate the point. The appellant argues that this was unfair. We
    reject this submission.

[6]

The trial judges description of the testimony was accurate. The
    evidence concerned the events on the morning after the alleged assault, not the
    assault itself. It was open to the trial judge to consider his impressions as
    part of the credibility analysis. More significantly, the trial judge conducted
    a detailed review of the appellants evidence and rejected it in its entirety,
    largely based on the acceptance beyond a reasonable doubt of the evidence of
    the complainant and other Crown witnesses.

The thoughts

[7]

The complainants mother testified about a previous allegation of
    voyeurism involving the appellant and her daughter. These charges have been
    dismissed. She testified that the morning after the incident, the appellant
    admitted that he had thoughts that caused him to go to the fireplace where the
    complainant was sleeping. The boyfriend corroborated this evidence.

[8]

The appellant submits that, having correctly instructed himself not to
    consider the alleged voyeurism incident, the trial judge nonetheless relied on
    the comment by the mother that the appellant had thoughts about his
    step-daughter, and wrongly ascribed a sexual nature to those thoughts. The
    appellant argues that the inference drawn by the trial judge that the thoughts
    were sexual was not reasonably available in the absence of the evidence of
    voyeurism. We reject this submission.

[9]

In any event, the trial judge was entitled to refer to and rely upon the
    mothers comments, which were made in the context of a heated discussion about
    sexual activity. It was open to the trial judge to accept her interpretation which
    was also corroborated by the boyfriend. The trial judge was entitled to
    consider the context of the conversation and both witnesses interpretation of
    the meaning in drawing his own reasonable inference. It was a reasonable
    inference from all of the evidenceexcluding the alleged voyeurismthat the
    thoughts were sexual in nature. The trial judges reasons clarify that he was
    not considering the voyeurism allegation.

[10]

For
    these reasons, the appeal is dismissed.

Alexandra Hoy A.C.J.O.

Doherty J.A.

M.L. Benotto J.A.


