



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act.

(2)
    Subsection (1) does not apply

(a) in a case where the
    information relates to a young person who has received an adult sentence;

(b) in a case where the
    information relates to a young person who has received a youth sentence for a
    violent offence and the youth justice court has ordered a lifting of the
    publication ban under subsection 75(2); and

(c) in a case where the
    publication of the information is made in the course of the administration of
    justice, if it is not the purpose of the publication to make the information
    known in the community.

(3) A young person
    referred to in subsection (1) may, after he or she attains the age of eighteen
    years, publish or cause to be published information that would identify him or
    her as having been dealt with under this Act or the
Young Offenders Act
, chapter Y-1 of the
    Revised Statutes of Canada, 1985, provided that he or she is not in custody
    pursuant to either Act at the time of the publication.

111(1)          Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138(1)          Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985,

(a) is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b) is guilty of an
    offence punishable on summary conviction.




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. D.S., 2022 ONCA 238

DATE: 20220323

DOCKET: C69680

Strathy C.J.O., Coroza and
    George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.S.

Appellant

Jill Gamble, for the appellant

Mark Luimes, for the respondent

Heard: March 15, 2022 by video
    conference

On appeal from the conviction entered on
    April 13, 2021 by Justice Julia A. Morneau of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant  13 years old at the relevant
    time  was found guilty of sexually assaulting his seven-year-old half-sister,
    K.R.

[2]

The appellant and K.R. lived with their grandparents
    and their mother, J.S. While everyone lived in the same household, the
    appellant was cared for by his grandparents; K.R. primarily by J.S.

[3]

The appellant pleaded not guilty. At trial, K.R.s
    police statement was admitted pursuant to s. 715.1 of the
Criminal Code
,
    and she was cross-examined. J.S. testified on behalf of the Crown. An agreed
    statement of fact from the grandparents was also tendered as part of the Crown
    case. No defence evidence was presented. The appellants counsel argued that
    the Crown had not satisfied its burden. The trial judge disagreed, finding that
    the Crown had established guilt beyond a reasonable doubt.

[4]

On the date in question, J.S. found the appellant
    and K.R. together in a room, under a blanket, giggling. She testified that,
    upon entering, she could see the top of K.R.s head. The appellant and K.R.
    were both shirtless. The appellants shorts were undone. J.S. asked the
    appellant to leave the room so she could help K.R. get ready for bed. K.R. then
    told her what the appellant had just done. J.S. then brought K.R. and the
    appellant to speak with their grandparents. J.S. told K.R. to disclose to her
    grandparents what she had just told her, which she did. The appellant denied it.

[5]

In the police statement, K.R. described the
    appellants conduct by pointing to her crotch area and indicating that the
    appellant touched himself there. She further testified that the appellant
    tried to  make [her] lick  his nuts; that he pee[d]  in [her] mouth;
    that he got his nuts out; and that he pulled down his zipper.

[6]

K.R. has been diagnosed with FASD and ADHD. She
    has a speech impediment, and functions at approximately two grade levels behind
    her peers. Her vocabulary is limited, and during her testimony she had obvious
    difficulties describing her, and the appellants, body parts.

[7]

The appellant appeals against conviction,
    raising these two grounds: 1) That the trial judges reasons are insufficient,
    and 2) that the verdict is unreasonable.

[8]

The trial judges reasons, while brief,
    adequately explain her decision and how she arrived at it. She addressed K.R.s
    limitations, given her age and disabilities, and found that, despite them, she
    could adequately describe what the appellant did to her, from which she did not
    resile. The trial judge acknowledged that K.R.s testimony was somewhat
    confusing but, after viewing her evidence through the proper lens, said this:

KRs evidence in cross examination was a bit
    confusing. However, when I consider KRs limitations, her account from the
    police interview, and her answers in cross examination that she did not see
    peeing in the mouth on a video game, and when Ms. Gamble said to KR that her
    brother [the appellant] did not pee in her mouth, KR understood that question
    and told Ms. Gamble that he did.

[9]

Apart from accepting K.R.s evidence, the trial
    judge also addressed the arguments of the appellants trial counsel. Of note,
    she addressed the submission that there was not enough time for the appellant
    to do what K.R. alleged he did, writing that:

Ms. Gamble did
    point out that the time that elapsed between when JS said she went into the
    house to get KR ready for bed after KR entered the home was 5 minutes.
    That was JSs evidence. Ms. Gamble argues that 5 minutes would be
    insufficient time for this event to unfold.

When witnesses offer time estimates it is
    usually without the benefit of having had a stopwatch in hand and there is no
    suggestion JS had. That afternoon the family had been outside on the deck. KR
    had been running through the backyard sprinkler. [The appellant] was inside the
    house. JS was visiting with her parents, lived at the home at this time and did
    enter the home to help get KR ready for bed. There was nothing unusual going on
    that would have required JS to measure the time. Her estimate of 5 minutes
    was just that.

[10]

The reasons are sufficient. While the trial
    judge does not expressly say that K.R. was reliable, when the reasons are read
    as a whole, it is clear that she found K.R. was. Recognizing that a trial judge
    does not have to resolve every inconsistency in the evidence, or detail
    findings on every controverted fact, these reasons explain the path to
    conviction and allow for appellate review:
R. v. R.E.M.
, 2008 SCC 51,
    [2008] 3 S.C.R. 3, at paras. 20, 24, 30, 35, 53, 55-56.

[11]

Lastly, this verdict is not unreasonable. Such a
    result is rare and only appropriate when the verdict is one that no properly
    instructed trier of fact, acting judicially, could reasonably have rendered:
R.
    v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37;
R.
    v. Yebes
, [1987] 2 S.C.R. 168, at p. 185. This onerous threshold has not
    been met.

[12]

The appeal is dismissed.

G.R.
    Strathy C.J.O.

S.
    Coroza J.A.

J.
    George J.A.


