



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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.






CITATION:
R. v. B.A., 2011 ONCA
603



DATE: 20110921



DOCKET: C53516



COURT OF APPEAL FOR ONTARIO



Laskin, Goudge and LaForme JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



B.A.



Appellant



Carlos Rippell, for the appellant



Joan Barrett, for the respondent



Heard and released orally:
September 16,
          2011



On appeal from the conviction
          entered on February 15, 2011 and the sentence imposed on March 8, 2011 by
          Justice Joseph A. De Filippis of the Ontario Court of Justice.



ENDORSEMENT



[1]

The trial judge gave four reasons for finding that the appellants
    evidence was not credible.  His first, and arguably main reason, was that the
    appellant was not forthright about the extent of his criminal record.  Indeed,
    the trial judge found that the appellant deliberately failed to disclose his
    complete record.  In our view, this was not a fair or tenable basis for rejecting
    the appellants evidence because of the way the criminal record was put into
    evidence.

[2]

As is often the case, defence counsel led the record at the beginning of
    his clients evidence.  Defence counsel obtained the record from the Crown. 
    The record he obtained, however, was not complete because it did not contain
    the appellants three most recent convictions: one for impaired driving and two
    for breach of recognizance.  Defence counsel said that he was going to have his
    client admit the record.  He asked the appellant whether the record accurately
    reflects your criminal record.  The appellant said yes it does.  Of course
    it did not.  That it did not emerged in cross-examination.

[3]

When the appellant volunteered that he had not yet moved out of the house
    because he was waiting for his licence suspension to end, the Crown asked
    whether the suspension was as a result of a criminal conviction.  The appellant
    readily admitted that he had recently been convicted for impaired driving. 
    Later, in response to questions from the Crown, the appellant admitted that he
    had been guilty of two breaches of recognizance.  As we read the record, in
    neither of these instances was the appellant being evasive or deliberately
    trying to hide his record.  That the record handed to him in his
    examination-in-chief was incomplete, appears to have been due to an inadvertent
    error by both Crown and defence counsel.

[4]

In the light of this context in which the appellants criminal record
    was introduced, the trial judge was not justified in using it to make an
    adverse credibility finding.  The trial judge did give other reasons for
    rejecting the appellants evidence.  However, his error in finding that the
    appellants initial mistake and acknowledgement of his record was not innocent
    irretrievably tainted his credibility finding.

[5]

For that reason alone, the convictions cannot stand.  Accordingly, the
    appeal is allowed, the convictions are set aside and a new trial is ordered.

John Laskin J.A.

S.T. Goudge J.A.

H.S. LaForme
    J.A.


