R. v. Maloney

R. v. Maloney Collection Decisions of the Court of Appeal Date 2009-11-02 Neutral citation 2009 ONCA 757 Docket numbers C48902 Judges Feldman, Kathryn N.; Blair, Robert Ashley; Watt, David 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. 486.5(1), (2), (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, 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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice. (2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, 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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice. (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 significant 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. 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. 205, c. 32, s. 15. CITATION: R. v. Maloney, 2009 ONCA 757 DATE: 20091102 DOCKET: C48902 COURT OF APPEAL FOR ONTARIO Feldman, Blair and Watt JJ.A. BETWEEN: Her Majesty the Queen Respondent and Jason Stewart Maloney Appellant Robert J. Reynolds, for the appellant Elise Nakelsky, for the respondent Heard and released orally: October 27, 2009 On appeal from conviction by Justice Richard C. Byers of the Superior Court of Justice dated April 15, 2008. ENDORSEMENT [1] The appellant appeals his conviction for sexual assault. The ground of appeal raised by the appellant was that in his reasons the trial judge engaged in an impermissible line of reasoning that included a finding of fact that had no basis in the evidence. The impugned paragraph is paragraph 22, which reads: I confess I find the pictures ugly, one after the other, and I find it difficult to believe that the woman who posed for the first three pictures so approved the fourth picture that she directed Mr. Maloney to take the sixth and then the seventh and so on. On his evidence the only picture not directed by her is the one taken by accident of her face. And in my view that is the only attractive picture of the lot. [2] The appellant argues that there was no evidence that the complainant thought that the impugned photographs were “ugly”, even though the trial judge did. [3] We would not give effect to this ground of appeal. The trial judge disbelieved the appellant’s story that the complainant consented to the sexual relations and the photographs. The trial judge believed the complainant, who said that she was asleep during the assault, but was awakened at the end and immediately jumped up and left, then came back for the camera and deleted the photographs. Photograph number six shows the complainant asleep. The trial judge noted that this corroborated her story. [4] Whatever the trial judge meant in paragraph 22, it was only a small part of his reasoning. His essential finding based on all the evidence including the photographs and post offence conduct, was that the complainant did not consent to the intercourse. That was the basis of the appellant’s conviction. [5] The appeal is therefore dismissed. Signed: “K. Feldman J.A.” “R. A. Blair J.A.” “David Watt J.A.”