R. v. Dacosta

R. v. Dacosta Collection Decisions of the Court of Appeal Date 2018-04-16 Neutral citation 2018 ONCA 235 Docket numbers C63415 Judges Rouleau, Paul S.; Huscroft, Grant; Fairburn, J. Michal Subject Criminal Decision Content 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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 complainant’s 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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Dacosta, 2018 ONCA 235 DATE: 20180309 DOCKET: C63415 Rouleau, Huscroft and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Dennis Dacosta Appellant Apple Newton-Smith, for the appellant K. Doherty, for the respondent Heard and released orally: March 6, 2018 On appeal from the conviction entered on May 24, 2016 and the sentence imposed on December 5, 2016 by Justice D.A. Broad of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant submits that the trial judge erred in applying a higher level of scrutiny to the evidence of the appellant than to the Crown’s evidence. [2] The appellant’s submissions focussed on the trial judge’s dismissal of the appellant’s exculpatory explanation for his statement made to police on the day of his arrest, and the trial judge’s failure to wrestle with and explain why he accepted the complainant’s testimony of repeated assaults, given the improbability of the assault having occurred in the family room with the mother being potentially in the next room. [3] We disagree. [4] The trial judge acknowledged the concern with respect to the likelihood of the sexual assaults having occurred in the family room with the mother being possibly nearby. He rejected the concern relying largely on the appellant’s admissions at the time of arrest. Those admissions included that he had inappropriately sexually touched his stepdaughter and was sorry to have done so. [5] These admissions supported the complainant’s allegations. Contrary to the appellant’s submission, the trial judge’s rejection of the appellant’s explanation for these admissions was well founded. The trial judge concluded that the explanations tendered by the appellant made no sense in the context in which the statements were made. Nothing more in our view was required. [6] The trial judge carefully considered the evidence before him, acknowledged the inconsistencies in the complainant’s evidence, and drew conclusions regarding the credibility and reliability of the witnesses who testified. It was open to him to reach the findings he did. His assessment of the evidence discloses no error. He did not scrutinize the evidence in an uneven fashion. [7] With respect to the sentence appeal, the trial judge did not err in principle or in law, the sentence imposed is fit and we see no basis to interfere. [8] For these reasons, the conviction and sentence appeals are dismissed. “Paul Rouleau J.A.” “Grant Huscroft J.A.” “Fairburn J.A.”