



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any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: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the victim shall not be published in any document or broadcast or transmitted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. Tootiak, 2021 ONCA 356

DATE: 20210527

DOCKET: C65194

Watt, Benotto and Harvison Young
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jayson Tootiak

Appellant

Ian B. Kasper, for the appellant

Alexander Hrybinsky, for the respondent

Heard: May 19, 2021 by video
conference

On appeal from the from the conviction
entered on February 26, 2013 and the sentence imposed on December 1, 2015 by
Justice Jack Nadelle of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of a sexual assault
and assault causing bodily harm. He was sentenced to 13 years less two years
pre-sentence custody on the sexual assault and 10 years concurrent on the
assault causing bodily harm. He appeals his conviction and sentence.

[2]

The appellant formally agreed at trial that the
sex act with the complainant took place. He did not testify.

[3]

He appeals the trial judges finding on
credibility of the complainant. He submits that the judge erred by: (i)
bolstering her credibility because she acknowledged her criminal record; (ii)
relying on evidence to support her credibility that was neither independent nor
material; and (iii) finding that she had an excellent recollection of events.

[4]

We accept none of these grounds.

[5]

A trial judge
s finding of credibility is owed a
high degree of deference on appeal. Read as a whole, the trial judges reasons
show he found the complainant to be credible and reliable. He made none of the
three errors alleged. In particular:

1.

The trial judge cautioned himself on the complainants criminal record.
In this context he commented that she readily admitted it. His comment was
responsive to the defence focus on her record during cross-examination. It did
not amount to impermissible bolstering.

2.

There was independent evidence confirming the complainants evidence:
the bus driver and the police officer testified about injuries to her face and
head. The nurse testified about injuries to her buttocks. This evidence was
independent and material.

3.

The trial judge was not required to address every inconsistency in the
complainants evidence. He found her recollection of events to be excellent.
Clearly, he was not referring to individual details such as how many drinks she
had consumed or how certain abrasions happened but rather her recollection of
being violently assaulted and raped.

[6]

We see no error in the trial judges conclusions.

[7]

The appellant was sentenced to 13 years less two years for pre-sentence
custody for the sexual assault. It is acknowledged by the Crown that this
exceeds the maximum sentence of 10 years and is thus an error.

[8]

The conviction appeal is dismissed. The sentence appeal is allowed. The
net sentence is therefore varied to six years, 10 months and two days.

David Watt J.A.

M.L. Benotto J.A.

A. Harvison Young
J.A.


