



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    the complainant or a witness shall not be published in any document or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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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. J.J., 2014 ONCA 759

DATE: 20141031

DOCKET: C56623

Sharpe, LaForme and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.J.

Appellant

Michael Dineen and Caitlin M. Pakosh, for the appellant

Tracy Kozlowski, for the respondent

Heard and released orally: October 24, 2014

On appeal from the conviction entered on June 15, 2012
    and the sentence imposed on December 6, 2012 by Justice
Robert
    A. Riopelle
of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his convictions on two counts of sexual assault
    following a judge alone trial.

[2]

The complainant was the appellants 14-year-old stepdaughter.  The Crown
    led evidence from the complainant and her mother, the appellants then spouse,
    who was also a police officer.  The Crown led evidence from the complainants
    mother that after her daughter had disclosed the allegations to her, she ordered
    the appellant from the house.  Initially unsure about who to believe, she
    decided to go to the appellant to attempt to trick him into confessing by
    telling him that if it was her daughter who initiated sex, she, the mother,
    would understand and attempt to reconcile with the appellant.  The
    complainants mother testified that the appellant admitted that he had had sex
    with the complainant at her instigation.

[3]

The appellant testified and denied the allegations and also denied
    making any admission to the complainants mother

[4]

The trial judge accepted the evidence of the complainant and her mother
    and rejected that of the appellant.

[5]

The appellant raises two grounds of appeal.  It is only necessary for us
    to deal with the first ground relating to the evidence of the admission made by
    the appellant to the complainants mother.

[6]

In his reasons for judgment, the trial judge described the circumstances
    of the alleged admission as follows: because shes a police officer at this
    point in time, not just a mother but a police officer, she goes and visits him
    on the third or fourth day at his mothers house, and using some trickery,
    police trickery obtains the admission which the appellant denies.

[7]

The trial judge rejected the appellants denial and again stated that
    the complainants mother was acting as a police officer: I am beyond a doubt
    satisfied that he did in fact confess or make that admission to [the
    complainants mother], who was acting at that point in time both as a mother
    and as a police officer.

[8]

When the evidence of the admission was led, there was no objection or
    request for a
voir dire
as to the issue of voluntariness given the
    complainants mothers status as a police officer.  This issue arose for the first
    time in the reasons of the trial judge.  Although the appellant did not raise
    the point at trial, the trial judges finding is clear and unequivocal, and
    there is nothing in the record to indicate that the defense waived the
    necessity of the
voir dire
.

[9]

There is ample authority for the proposition that a trial judge has an
    obligation to conduct a
voir dire
to assess the voluntariness of the
    statement where the receiver of the statement is a conventional person
    authority such as a police officer: see
R. v. Hodgson

(1998),
    127 CCC (3d) 449 (S.C.C.).  Plainly, the appellant knew that the complainants
    mother was a police officer.  If the complainants mother was acting in her
    capacity as a police officer, as the trial judge found, the issue of an
    inducement arises as she suggested that if the appellant admitted having had
    sex with his stepdaughter, there was a possibility of reconciliation.

[10]

While
    the proposition that the complainants mother was acting as a police officer
    may well be something the Crown could dispute, given the trial judges
    unequivocal finding, it is our view that, absent waiver by the appellant, he
    should have conducted a
voir dire
to determine the role in which the
    complainants mother was acting and the voluntariness of the statement.

[11]

We
    cannot accept the Crowns submission that the verdict would necessarily have
    been the same without the evidence of the admission as the trial judge attached
    significant weight to it.

[12]

In
    these circumstances, the appeal must be allowed, the convictions set aside and
    a new trial ordered.

Robert
    J. Sharpe J.A.


H.S. LaForme J.A."

G.
    Pardu J.A. "


