



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. W.R., 2019 ONCA 49

DATE: 20190125

DOCKET: C64572

Doherty, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.R.

Appellant

Robert Sheppard, for the appellant

Erica Whitford, for the respondent

Heard and released orally: January 22, 2019

On appeal from the conviction entered on April 28, 2017,
    by Justice A. Duncan Grace of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

This was a factually and legally straight-forward short jury trial. The
    jury had to assess the diametrically opposed versions of events given by the
    complainant and the appellant through the lens of the presumption of innocence
    and the burden of proof. The trial judge repeatedly and correctly instructed
    the jury on both.

[2]

In his oral argument, counsel focused on two submissions. First, he
    argued that the trial judge should have specifically cautioned the jury that
    the appellants failure to return to Canada immediately upon being told of the
    outstanding charges could not be used as evidence against him.

[3]

We agree that the appellants failure to return to Canada for about two
    years after he became aware of the charges did not constitute circumstantial
    evidence of his guilt. However, given the arguably inconsistent evidence given
    by the appellant on the timing of his return to Canada, that evidence could
    have been considered by the jury in assessing the appellants credibility.

[4]

The trial judge heard extensive pre-charge submissions on what, if
    anything, he should say to the jury about the evidence concerning the
    appellants return to Canada. The trial judge eventually chose to say nothing. He
    was not asked to say anything about that part of the evidence by counsel for
    the appellant at trial. No doubt, if the trial judge had decided to tell the
    jury what it could not use the evidence for, that is, as circumstantial
    evidence of guilt, he would have been obliged to explain to the jury what it
    could use the evidence when assessing the appellants credibility.

[5]

Counsels silence at trial reflects a tactical decision. Specific
    reference to the evidence that could undermine the appellants credibility would
    have been very dangerous for the defence, which depended on the appellants
    credibility. We cannot say that the failure to give the limiting instruction
    now argued for amounts to misdirection in the circumstances.

[6]

The second submission made by counsel in this court focuses on the
    complainants evidence of the 2008 event. The complainant testified that the
    appellant forced her to engage in full sexual intercourse for the first time in
    the summer of 2008. The appellant who testified and denied all of the
    allegations of sexual misconduct also led evidence that he was out of the
    country for almost all of 2008, including the summer. He argued that this
    evidence showed that he could not possibly have committed the rape in the
    summer of 2008, as alleged by the complainant. The appellant submits that the
    jury should have been told that if they concluded that the complainant was
    deliberately lying to them about the 2008 event, they could use that
    deliberate lie to conclude that none of her allegations could be believed. Trial
    counsel forcefully took that position in his closing address to the jury.

[7]

We are satisfied that on the entirety of the instructions, the jury
    would have understood that it was required to consider the entirety of the
    complainants testimony in the context of the rest of the evidence in deciding
    whether it believed all, some or none of her evidence. A similar instruction
    appears in response to the jurys question, which focused on the 2008 event,
    and the impact of the jurys assessment of that evidence on their verdict on
    count 1.

[8]

The trial judge did tell the jury that a deliberate lie by a witness
    was relevant to the witness overall credibility. His failure to go on and
    specifically tell the jury that a deliberate lie is always important in
    assessing credibility and may lead to a rejection of the entirety of the
    witness evidence is, in our view, not a fatal non-direction. The significance
    to the assessment of a witness credibility of a finding that the witness
    deliberately lied on a material matter could not possibly be lost on 12
    reasonable jurors. While there is no harm in stating the obvious, and it may be
    the wiser course, we do not accept that the failure to do so constitutes
    misdirection.

[9]

The appeal is dismissed.

Doherty J.A.

B.W. Miller J.A.

Gary T. Trotter J.A.


