



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)       REPEALED: S.C. 2014, c. 25, s. 22(2),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    that could identify the victim shall not be published in any document or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. P.H., 2018 ONCA 482

DATE: 20180523

DOCKET: C63875

MacFarland, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.H.

Appellant

David North, for the appellant

Carmen Elmasry, for the respondent

Heard and released orally: May 16, 2018

On appeal from the conviction entered on January 18, 2017
    by Justice Gregory M. Mulligan of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

[1]

It is entirely clear why the trial judge convicted Mr. H. of four sexual
    offences occurring when he fondled his previously estranged 16-year-old
    daughter on two occasions, once in his bed and once in his car. Immediately
    after the bed incident he began to send explicit messages to his daughter
    describing the kind of sexual activity he wanted to engage in. That evidence
    not only confirmed his sexual interest in the complainant, the timing of its
    onset offered powerful corroboration that their relationship had become
    inappropriately sexualized. A photograph taken shortly after the first event of
    the complainant curled up on his lap in a clearly inappropriate cuddle
    reinforced the context of events.

[2]

Mr. H.s primary ground of appeal relates to the evidence of his
    girlfriend. He claims that the trial judge misapprehended by disregarding the testimony
    of his girlfriend that she was in bed with Mr. H. at the time the first alleged
    sexual activity occurred, making it impossible for the alleged events to have
    happened. Mr. H. also contends that the trial judges curt treatment of the
    girlfriends evidence was insufficient to explain its rejection, and that he
    erred by noting that he preferred the complainants evidence to hers.

[3]

We do not allow these grounds of appeal. The trial judge did not simply
    say he preferred the complainants testimony. He said he could not accept the
    girlfriends specific memory, citing her friendship with Mr. H., and the
    opportunities Mr. H. would have had to be alone with his daughter during the
    relevant period. The girlfriend is also the one who photographed the
    inappropriate cuddle described above. The trial judge cited
R. v. W. (D.)
and demonstrated an understanding of this rule in his decision. The trial judge
    was entitled to conclude that the girlfriends evidence did not raise a
    reasonable doubt in the face of the complainants testimony, in all of the
    circumstances.

[4]

We have considered other grounds of appeal raised in the factum, none of
    which we accept. We do recognize that this judgment is not without its
    difficulties. The trial judge should not have relied on the fact that this
    event is not something the complainant would forget, given that the real issue
    was not the complainants recollection, but rather her credibility. The trial
    judge should also have explicitly addressed why he did not find inconsistencies
    between the complainants trial evidence and preliminary inquiry testimony to
    undermine his trust in her evidence.

[5]

In context however, these missteps do not amount to reversible legal
    error. The trial judge offered ample reason for Mr. H.s convictions. The appeal
    is dismissed.

J.
    MacFarland J.A.

David Watt
    J.A.

David M.
    Paciocco J.A.


