R. v. S.M.

R. v. S.M. Collection Decisions of the Court of Appeal Date 2012-09-12 Neutral citation 2012 ONCA 599 Docket numbers C53311 Judges Rosenberg, Marc; Blair, Robert Ashley; Rouleau, Paul S. 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 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. COURT OF APPEAL FOR ONTARIO CITATION: R. v. S.M., 2012 ONCA 599 DATE: 20120911 DOCKET: C53311 Rosenberg, Blair and Rouleau JJ.A. BETWEEN Her Majesty the Queen Respondent and S.M. Appellant Dirk Derstine and Mariya Yakuskeva, for the appellant Mabel Lai, for the respondent Heard: September 7, 2012 On appeal from the decision of the Summary Conviction Appeal Court dated January 26, 2011 by Justice Robert D. Reilly of the Superior Court of Justice, dismissing the appeal from the conviction entered on December 18, 2008 by Justice Gary F. Hearn of the Ontario Court of Justice. APPEAL BOOK ENDORSEMENT [1] This is not a case to grant leave to appeal. It raises no legal issues of significance to the general administration of justice. To the contrary, it raises issues about sufficiency of reasons and credibility assessment that have been repeatedly addressed by appellate courts and the Supreme Court of Canada. [2] This is also not a case where the merits appear very strong. The trial judge gave extensive reasons for his findings. Contrary to the appellant’s submission these findings were not simply conclusory. The trial judge dealt with the inconsistencies in the evidence. He did not simply reject the appellant’s evidence because he found the complaint credible. He explained for example that the appellant’s evidence did not accord with common sense. [3] The summary conviction appeal court was entitled to find that the trial judge’s reasons were sufficient, dealt appropriately with the credibility issues and correctly applied the burden of proof. [4] Accordingly, leave to appeal is refused.