R. v. S.T.L.

R. v. S.T.L. Collection Decisions of the Court of Appeal Date 2011-03-07 Neutral citation 2011 ONCA 176 Docket numbers C52221 Judges Moldaver, Michael James; Cronk, Eleanore Ann; Juriansz, Russell G. 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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. CITATION: R. v. S.T.L., 2011 ONCA 176 DATE: 20110304 DOCKET: C52221 COURT OF APPEAL FOR ONTARIO Moldaver, Cronk and Juriansz JJ.A. BETWEEN: Her Majesty The Queen Respondent and S.T. L. Appellant Robert J. Reynolds, for the appellant Emile Carrington, for the respondent Heard and endorsed: March 3, 3011 On appeal from conviction entered by Justice Robert F. Scott of the Superior Court of Justice, dated December 16, 2009. APPEAL BOOK ENDORSEMENT [1] This appeal, in our view, is essentially fact driven. Brief though his reasons were, we are satisfied that the trial judge was aware of the inconsistencies in the complainant’s and the appellant’s evidence. Indeed, he set out three concerns with the appellant’s evidence which he viewed as serious. This assessment was clearly within his purview. As for the inconsistencies in the complainant’s evidence, the trial judge regarded them as insignificant in the context of the whole of her evidence, which he found she gave in a “clear, concise and credible manner”. In the end, having instructed himself properly in accordance with the principles in D.W., he rejected the appellant’s evidence and concluded that he could safely rely on the complainant’s evidence to convict. We see no basis for concern that the trial judge applied a different level of scrutiny to the appellant’s evidence than he applied to the evidence of the complainant. [2] Accordingly, the appeal is dismissed.