R. v. A.C.

R. v. A.C. Collection Decisions of the Court of Appeal Date 2009-09-22 Neutral citation 2009 ONCA 667 Docket numbers C49646 Judges Goudge, Stephen Thomas; Armstrong, Robert Patrick; Blair, Robert Ashley Subject Criminal Decision Content W A R N I N G 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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii). (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 complainant of the right to make an application for the order; and (b) on application made by the complainant, the prosecutor or any such witness, 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). 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. CITATION: R. v. A.C., 2009 ONCA 667 DATE: 20090922 DOCKET: C49646 COURT OF APPEAL FOR ONTARIO Goudge, Armstrong and Blair JJ.A. BETWEEN Her Majesty the Queen Respondent and A.C. Appellant Catriona Verner, for the appellant Bradley J. Greenshields, for the respondent Heard and released orally: August 21, 2009 On appeal from the conviction entered by Justice Julia Morneau of the Ontario Court of Justice on June 29, 2007. ENDORSEMENT [1] The appellant appeals his conviction for sexual assault on two grounds: (1) the trial judge rejected the appellant’s evidence simply because she believed the evidence of the complainant, and (2) in the alternative, the reasons of the trial judge do not meet the test of the Supreme Court of Canada as articulated in R. v. Sheppard. [2] While the reasons of the trial judge do not specifically expressly articulate the basis for rejecting the appellant’s evidence, a fair reading of the entire reasons indicates that the trial judge did not simply accept the testimony of the complainant and therefore reject the evidence of the appellant. She said that she considered the whole of the evidence and, in particular, the emotional state of the complainant as testified to by the police officer and as revealed by the audiotape of the 911 emergency call. This evidence was entirely supportive of the complainant’s version of events and inconsistent with the appellant’s version that nothing happened that night in the motel room. [3] While it would have been preferable for the trial judge to expressly articulate the above, we are of the view that the reasons read as a whole reveal the basis for the decision. [4] The appeal is therefore dismissed. “S. Goudge J.A.” “Robert P. Armstrong J.A.” “R.A. Blair J.A.”