



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)       REPEALED: S.C. 2014, c. 25, s. 22(2),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    that could identify the victim shall not be published in any document or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. Scott, 2018 ONCA 123

DATE: 20180207

DOCKET: C63616

MacFarland, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Scott

Appellant

Catriona Verner, for the appellant

Mabel Lai, for the respondent

Heard and released orally: January 31, 2018

On appeal from the conviction entered on October 17, 2016
    by Justice Ronald A. Marion of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

We are concerned that the trial judge erred and reversed the onus of
    proof when he said, as one of his reasons for disbelieving the appellants
    version of events, that the appellant was unable to explain the bruises on the
    complainant. The appellant had no obligation to do so. Particularly here where
    the trial judge had acquitted him of all charges in relation to the incident
    the previous evening and where the complainant herself could not explain which
    event particular bruises related to. In addition, the neighbours evidence, in
    our view, was more corroborative of the appellants version of events.

[2]

The proposed fresh evidence  the CFS report of the penile swab  which
    the appellant volunteered to police soon after his arrest, appears to
    demonstrate that there was no female DNA present. The appellants trial counsel
    asserts that it was simply through inadvertence that he failed to file that
    report at trial and the Crown does not take issue with that position. The Crown
    says however that the filing of that report would be simply no evidence and
    hence we should not admit it.

[3]

We do not agree.

[4]

In our view the fresh evidence is of sufficient cogency that it could
    reasonably be expected to affect the verdict. Accordingly, we would admit the
    fresh evidence and allow the appeal. Therefore the conviction is set aside and a
    new trial is ordered.

J.
    MacFarland J.A.

G. Pardu
    J.A.

M.L.
    Benotto J.A.


