R. v. L.L.

R. v. L.L. Collection Decisions of the Court of Appeal Date 2014-12-12 Neutral citation 2014 ONCA 892 Docket numbers C53197 Judges Doherty, David H.; Feldman, Kathryn N.; Epstein, Gloria Jean 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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29. 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. L.L., 2014 ONCA 892 DATE: 20141211 DOCKET: C53197 Doherty, Feldman and Epstein JJ.A. BETWEEN Her Majesty the Queen Respondent and L.L. Appellant Keith E. Wright, for the appellant Karen Papadopoulos, for the respondent Heard: November 28, 2014 On appeal from the conviction entered by Justice Bruce J. Frazer of the Ontario Court of Justice, dated September 23, 2010. APPEAL BOOK ENDORSEMENT [1] The parties agree that this case turned on the credibility of the complainant and the appellant. This was not an easy case for the trial judge. His credibility assessments are entitled to deference. [2] Counsel for the appellant takes issue with several features of the credibility assessments. We do not accept those submissions. However, we do find troubling the trial judge’s reference to the complainant’s lack of embellishment. It is not clear exactly how the absence of embellishment would help the complainant’s credibility. It may be that the trial judge meant no more than a comment on what he saw as the straightforward, candid nature of her evidence. [3] In any event, the “embellishment” comments were but one of several reasons given for accepting the complainant’s evidence. Considered as a whole, we think the reasons provide ample explanation for the trial judge’s assessment of the complainant’s credibility. [4] The conviction on count 1 is stayed under Kienapple. Otherwise, the appeal is dismissed.