



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.L., 2020 ONCA 77

DATE: 20200131

DOCKET: C64746

Watt, Tulloch and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.L.

Appellant

Mark Halfyard, for the appellant

Elizabeth Teed, for the respondent

Heard and released orally: January 22, 2020

On appeal from the conviction entered on October 31, 2017
    and the sentence imposed on June 4, 2018 by Justice Thomas A. Bielby of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of counts of sexual assault and sexual
    interference after a trial before a judge of the Superior Court of Justice
    sitting without a jury. He was sentenced to a term of imprisonment of six
    months less one day and ordered to comply with the terms of a probation order
    for a period of two years as well as the usual ancillary orders.

[2]

He appeals from the conviction.

The Background Facts

[3]

The allegations against the appellant were historical in nature. They
    involved two complainants. In respect of one complainant, the appellant was
    acquitted. In respect of the other, he was convicted. The complainants were
    sisters in relation to whom the appellant occupied a position of trust.

[4]

The appellant testified at trial. As he had done during a videotaped
    interview on arrest, he denied that the events of which the complainants
    testified occurred.

The Grounds of Appeal

[5]

In oral argument, the appellant advanced three principal grounds of
    appeal. He says that the trial judge erred:

i.

in failing to reconcile inconsistencies between the evidence of the complainant
    and the testimony of other witnesses, including her mother, about prior
    reporting of the assault and access to, and use of, a computer in the
    appellants home office;

ii.

in overemphasizing the demeanour of the appellant during a police
    interview as the principal basis for rejecting his evidence denying that the
    events alleged ever too place; and

iii.

in assigning too much weight to the youthfulness of the complainant in
    assessing her credibility as a witness and the reliability of her testimony.

Discussion

[6]

The appellant readily accepts that a trial judge is under no obligation
    to reconcile every inconsistency, whether internal or external, in the
    testimony of a witness, in this case the complainant. He also acknowledges that
    demeanour is a factor that the trial judge was entitled to consider in
    assessing the credibility of any witness who testified at trial. Nor does he
    dispute that a trial judge is entitled to consider the age of a witness at the
    time of relevant events as a factor to consider in assessing the truthfulness
    of that witness, in particular, in reconciling various inconsistencies in that
    witness evidence.

[7]

We are not persuaded that the claims of error advanced, whether
    considered individually or cumulatively, warrant our intervention. That another
    judge might have provided a more detailed assessment of the inconsistencies in
    the complainants evidence; or explored more fully the discrepancies between
    her evidence and that of other witnesses; or might have relied less on
    demeanour as a credibility and/or reliability determinant; or have accorded
    less latitude to the complainants age in the evaluation of her evidence does
    not mean that the analysis of this trial judge is fatally flawed.

[8]

In the result, we are satisfied that the findings made by the trial
    judge were open to him. The specific complaints advanced do not rise to the
    level required to warrant our interference.

Disposition

[9]

The appeal from conviction is dismissed.

[10]

In his notice of appeal, the appellant also appealed sentence. This
    appeal was not pursued in the factum or in oral argument. The appeal from
    sentence is dismissed.

David Watt J.A.

M. Tulloch J.A.

Gary Trotter J.A.


