



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.M., 2018 ONCA 1060

DATE: 20181219

DOCKET: C60672

Juriansz, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.M.

Appellant

Wayne Cunningham, for the appellant

Alexandra Terrana, for the respondent

Heard and released orally: December 17, 2018

On appeal from the conviction entered on November 20,
    2014 by Justice Louise Botham of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant raises two issues on appeal.

[2]

First, he submits that the trial judge erred by admitting the video-recording
    of the complainants police statement into evidence under s. 715.1 of the
Criminal
    Code
.

[3]

We do not entertain this argument advanced for the first time on appeal
    as we are not persuaded that any unfairness or prejudice resulted from the
    video-recordings admission in the circumstances of this case. Further, the Defence
    Counsel at the appellants trial clearly and expressly consented to the
    admission of the video-recording.

[4]

Second, the appellant submits the trial judge erred in her assessment of
    the complainants evidence. In particular, the appellant submits that the trial
    judge failed to assess the complainants credibility and reliability in the
    context of the evidence as a whole and instead focused on only one incident,
    namely the incident leading to the appellants conviction.

[5]

We do not accept the appellants submission. The trial judge did consider
    the whole of the complainants testimony and found it did not satisfy her
    beyond a reasonable doubt in regard to the other allegations. While the trial judges
    reasons were brief, she provided an adequate explanation why she was satisfied
    beyond a reasonable doubt about the one incident.

[6]

Nor do we accept the argument the conviction rests on the trial judges
    assessment of nothing but the complainants demeanour. The trial judge
    considered the clearness of the complainants testimony about the incident, the
    level of detail provided, as well as the confidence the complainant had in her
    recollection of it. The trial judge was mindful of the issues between the
    complainants parents and considered whether the allegation might have been the
    product of vindictiveness against her complainants father, and she also
    considered the delayed disclosure.

[7]

The appeal is dismissed.

R.G. Juriansz J.A.

L.B. Benotto J.A.

G.T. Trotter J.A.


