



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. 486.5(1), (2), (2.1), (3), (4),
    (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under
    section 486.4, on application of the prosecutor in respect of a victim or a
    witness, or on application of a victim or a witness, a judge or justice may
    make an order directing that any information that could identify the victim or
    witness shall not be published in any document or broadcast or transmitted in
    any way if the judge or justice is of the opinion that the order is in the
    interest of the proper administration of justice.

(2)     On application of the prosecutor
    in respect of a justice system participant who is involved in proceedings in
    respect of an offence referred to in subsection (2.1), or on application of
    such a justice system participant, a judge or justice may make an order
    directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes of
    subsection (2) are

(a) an offence under section 423.1,
    467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the
    benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1)
    or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
;
    or

(d) an offence under subsection 21(1)
    or section 23 of the
Security of Information Act
that is committed in
    relation to an offence referred to in paragraph (c).

(3)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding
    judge or justice or, if the judge or justice has not been determined, to a
    judge of a superior court of criminal jurisdiction in the judicial district
    where the proceedings will take place; and

(b) provide notice of the application
    to the prosecutor, the accused and any other person affected by the order that
    the judge or justice specifies.

(5)     An applicant for an order shall
    set out the grounds on which the applicant relies to establish that the order
    is necessary for the proper administration of justice.

(6)     The judge or justice may hold a
    hearing to determine whether an order should be made, and the hearing may be in
    private.

(7)     In determining whether to make
    an order, the judge or justice shall consider

(a) the right to a fair and public
    hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness or
    justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) society’s interest in encouraging
    the reporting of offences and the participation of victims, witnesses and
    justice system participants in the criminal justice process;

(e) whether effective alternatives are
    available to protect the identity of the victim, witness or justice system
    participant;

(f) the salutary and deleterious
    effects of the proposed order;

(g) the impact of the proposed order on
    the freedom of expression of those affected by it; and

(h) any other factor that the judge or
    justice considers relevant.

(8)     An order may be subject to any
    conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information
    given or submissions made at a hearing under subsection (6); or

(c) any other information that could
    identify the person to whom the application relates as a victim, witness or
    justice system participant in the proceedings.  2005, c. 32, s. 15; 2015, c.
    13, s. 19

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. Tomelty, 2019 ONCA 670

DATE: 20190826

DOCKET: C64467

Watt, Huscroft and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Tomelty

Appellant

Thomas Tomelty, appearing via videoconference

Benita Wassenaar, for the respondent

Margaret Bojanowska, duty counsel

Heard: August 20, 2019

On appeal from the convictions entered on May 15, 2017 and
    the sentence imposed on June 21, 2017 by Justice Richard H. K. Schwarzl of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of several offences after a trial before a
    judge of the Ontario Court of Justice. In the main, the convictions relate to
    assaults and threats to his wife and his son. Some had to do with then current
    events, others with offences alleged to have occurred several years earlier. In
    addition, convictions were entered for offences involving possession and unsafe
    storage of a semi-automatic rifle.

[2]

The trial judge imposed a sentence of imprisonment of 28 months in
    connection with the assault and threatening convictions and fines of $1,000 on
    each of the firearms counts, together with the usual ancillary orders including
    victim surcharges.

[3]

The appellant, who appeared by videoconference, appeals both conviction
    and sentence. He is assisted by duty counsel.

The Background Facts

[4]

The trial proceedings, including the evidence adduced and the closing
    submissions by counsel on both sides, occupied four court days. When the
    submissions of counsel concluded, the trial judge reserved his decision. About
    six weeks later, he gave lengthy written reasons.

[5]

The principal witnesses at trial were the complainants, the appellants
    wife and his son. Each was cross-examined at length. The appellant did not
    testify.

The Appeal from Conviction

[6]

On the appeal from conviction, duty counsel contends that the trial
    judge failed to turn his mind to the reliability of the testimony of the
    complainants in determining whether the Crown had proven the offences alleged
    in the various counts in the information beyond a reasonable doubt.

[7]

In support of this submission, duty counsel pointed to several examples
    of what she characterized as major inconsistencies in each complainants
    testimony. Some within the testimony of each witness. Some between the
    testimony of the witness and his or her statement to investigators. And others
    as between the accounts of each complainant about the same events. It was
    incumbent on the trial judge, duty counsel submitted, to resolve these
    inconsistencies of substance. His failure to do so caused a miscarriage of
    justice and warrants a new trial.

[8]

It is well-settled that trial judges occupy a unique position in
    assessing the credibility of witnesses and the reliability of their testimony.
    The reasons of the trial judge in this case demonstrate his appreciation of the
    need to carefully assess the evidence before concluding that guilt had been
    proven beyond a reasonable doubt in a case involving allegations of internal
    and external inconsistencies in the evidence of the principal witnesses.

[9]

It is also firmly established that a trial judge is under no obligation
    to record discrete findings of fact in connection with every piece of evidence
    adduced at trial. Substance controls, not detail.

[10]

In our view, the detailed reasons of the trial judge demonstrate that he
    grappled with the substance of the live issues at trial. He recognized that the
    credibility of the victims and the reliability of their evidence were live
    issues for him to determine. He acknowledged the inconsistencies and resolved
    those that mattered in establishing guilt beyond a reasonable doubt. Nothing
    more was required of him.

[11]

The appeal from conviction is dismissed.

The Appeal from Sentence

[12]

Although the appeal from sentence was not pressed in oral argument, we
    have considered its fitness as is our mandate under s. 687 of the
Criminal
    Code
. Our review of the reasons for sentence reveals no error of law or of
    principle, no failure to consider a relevant sentencing factor, and no
    erroneous consideration of a relevant aggravating or mitigating factor. In our
    view, the sentence imposed is not demonstrably unfit, rather properly reflects
    the fundamental principle of proportionality.

CONCLUSION

[13]

The appeal from conviction is dismissed. Leave to appeal sentence is
    granted, but the appeal from sentence is dismissed except that the victim
    surcharges imposed at trial are set aside.

David Watt
    J.A.

Grant Huscroft
    J.A.

M. Jamal J.A.


