R. v. Carlson

R. v. Carlson Collection Decisions of the Court of Appeal Date 2018-02-14 Neutral citation 2018 ONCA 157 Docket numbers C61862 Judges MacPherson, James C.; Huscroft, Grant; Trotter, Gary T. 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Carlson, 2018 ONCA 157 DATE: 20180214 DOCKET: C61862 MacPherson, Huscroft and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Shaun Joseph Carlson Appellant Shaun Joseph Carlson, acting in person Deborah Calderwood, for the respondent Howard Krongold, duty counsel Heard: February 7, 2018 On appeal from the conviction entered on September 3, 2015 and the sentence imposed on February 25, 2016 by Justice Maureen D. Forestell of the Superior Court of Justice, sitting without a jury. APPEAL BOOK ENDORSEMENT [1] The appellant appeals his convictions for sexual assault and other offences related to events on May 8, 2013. He was sentenced to eight years imprisonment. [2] On appeal, Mr. Krongold, on behalf of the appellant, argues that the trial judge erred in her handling of the s. 276 application, and in how she dealt with the underlying issue in her final reasons for judgment. [3] We disagree. The complainant’s inconsistency on her relationship with an acquaintance was fully appreciated by the trial judge. She rightly concluded that further details about the complainant’s potential sexual relationship with her friend would not have realistically advanced the motive theory of the defence. While the trial judge could have used stronger language in her reasons for judgment when referring to this aspect of the complainant’s evidence, and its impact on her credibility, we are satisfied that the trial judge appreciated the importance of this problem in her evidence. [4] Moreover, this aspect of the trial judge’s reasons must be read within the context of the reasons as a whole. The trial judge made a very thorough and careful appraisal of the evidence of the complainant. She did the same with the appellant, whose evidence was rejected along the path to finding him guilty beyond a reasonable doubt. All of her findings are well-grounded in the evidence. We would not interfere. [5] The appeal is dismissed.