



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. 1




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.V., 2020 ONCA 797

DATE: 20201211

DOCKET: C67389

Juriansz, Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.V.

Appellant

Craig Zeeh, for the appellant

Amy Alyea and Jeffrey Wyngaarden, for
    the respondent

Heard: December 10, 2020 by
    videoconference

On appeal from the conviction entered by
    Justice Anne M. Molloy of the Superior Court of Justice on December 7, 2018.

REASONS FOR DECISION


[1]

The trial judge, sitting without a jury,
    convicted the appellant of one count of sexual assault and one count of sexual
    interference. The appellant appeals on the basis that the trial judge failed to
    provide sufficient reasons for convicting him.

[2]

On December 7, 2018, immediately after counsel
    completed their closing submissions the trial judge stated:

I am going to reserve. So I am going to put
    this matter over. Although this has not been a very long trial, the evidence
    is tricky, so I do think it will take me some time.

What I do know right now is that [the
    complainant] was sexually assaulted by the accused. I am absolutely confident
    of that. So there will be a conviction.



I am not in a position to set all of my
    reasons on the record at this point because I do need to deal with the
    inconsistencies. However, on the core issues of the sexual assault that
    occurred, I completely believe that they happened. I have no doubt that this
    child was sexually molested, and by this accused.

[3]

The trial judge revoked the appellants bail and
    set February 28, 2019 for the delivery of reasons and sentencing. On February
    28, 2019, the trial judge did not provide her reasons for conviction, heard the
    parties submissions on sentence, and put the matter over to April 30, 2019.
    The trial judge did not provide reasons for conviction on April 30, 2019. On
    that date, she sentenced the appellant to seven years imprisonment less 17
    months of pre-sentence custody and delivered oral reasons for the sentence. Her
    reasons for sentence do not contain any analysis of why she was convinced of
    the appellants guilt beyond a reasonable doubt.

[4]

The Crown has filed fresh evidence outlining the
    inquiries that have been made to determine whether the trial judge had
    delivered written reasons.  We have reviewed the fresh evidence and would
    admit it. The Crown is satisfied, after making several inquiries of the trial
    judges office, the Criminal Intake Office, the Recording Management Office,
    and trial counsel that no reasons have been delivered and concedes that the
    appeal should be allowed.

[5]

The evidence at trial involved some tricky
    issues, as the trial judge noted on December 7, 2018. The defence had argued
    that inconsistencies in the complainants testimony undermined his credibility
    and reliability. The trial judge expressly recognized she needed to explain how
    she dealt with these inconsistencies. Her remark that she was confident of the
    appellants guilt does not explain to the appellant why he was convicted and does
    not permit appellate review:
R. v. Sheppard
, 2002 SCC 26;
R. v.
    R.E.M
.,
2008 SCC 51, at paras. 15-17;
R. v. Vuradin
, 2013
    SCC 38, at paras. 10-15;
R. v. Dinardo
, 2008 SCC 24.

[6]

The appeal is allowed, the conviction set aside,
    and a new trial ordered pursuant to s. 686(2)(b) of the
Criminal Code.
The draft orders that the parties have agreed upon
    may issue.


R.G.
    Juriansz J.A.

M.
    Jamal J.A.

S.
    Coroza J.A.


