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. 486.4(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Avakian, 2010 ONCA 530

DATE: 20100723

DOCKET: C50466

COURT OF APPEAL FOR ONTARIO

Doherty, Gillese and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Azad Avakian

Appellant

Richard Posner, for the appellant

Joanne Stuart, for the respondent

Heard and released orally July 21, 2010

On appeal from the conviction entered by Justice John F. Hamilton of the Superior Court of Justice, sitting without a jury, dated February 6, 2009, and the sentence imposed on February 13, 2009.

ENDORSEMENT

1This appeal arises from the appellant’s conviction for sexually assaulting PP.

2PP was a 17 year old young woman who had left a bad home life and moved in with her friend, her friend’s mother and the mother’s boyfriend, the appellant. The appellant was 46 years of age.

3PP had a part time job in which she worked evenings handing out flyers that advertised a local restaurant. About a month after moving in, the appellant offered to drive PP to work. PP did not really want to go to work because it was raining and she had a cold. The appellant suggested that she not work that evening and offered to wait for her while she told her employer that she could not work that night.

4After telling her employer she would not be working that evening, PP returned to the appellant’s truck. For the first time, he told her that he needed to stop at a house that was going to be demolished so he could pick up some things before going home. The appellant then took PP to a vacant house, without any electricity. The appellant had a flashlight with him. He asked the appellant to go into the house with him and help carry things from the house to his truck. While in the house, the appellant, a long-time cocaine addict, pressured PP to smoke crack cocaine with him. She had not previously used crack cocaine. She inhaled twice and felt wobbly and numb. The appellant asked if she were a virgin and she replied that she was. She felt numb and had a hard time speaking.

5The appellant then engaged in sexual activity with PP. According to PP, the sexual acts included the appellant licking her vagina, putting his penis in her mouth and then shoving his penis into her vagina and having intercourse. PP testified that she did not consent to the sexual activity and could not because the crack cocaine had incapacitated her.

6PP was examined by a sexual assault nurse in the Scarborough Hospital the day after the sexual acts took place. The nurse testified that she observed a tear in the opening to PP’s vagina and slight bleeding in PP”s cervix.

7When confronted by the police with the allegation of sexual assault, the appellant said that “nothing happened”. At trial, however, the appellant acknowledged that some of the sexual acts recounted by PP had taken place but denied that he had intercourse with her. He testified that PP consented to the sexual activity or that he had an honest mistaken belief that she consented.

8At trial, expert evidence was called by both parties regarding the effect that crack cocaine would have had on PP. Dr. Pelletier, the Crown expert, said that it was possible that PP had suffered the effects that she described. That is, he opined that cocaine could cause that kind of incapacity in a first time user in strange surroundings.

9Dr. Rosenbloom testified for the defence. He stated that the symptoms PP described are not consistent with the pharmacology of cocaine.

10The trial judge gave lengthy reasons for rejecting the appellant’s version of events and explained why he was not left in doubt by it. He found the appellant’s evidence to be inconsistent and he found that the appellant had not been candid either with the police or the court.

11The trial judge also gave lengthy reasons for accepting PP’s evidence. The trial judge stated that he believed PP when she said she felt paralyzed, could not move and had difficulty talking after having smoked the crack cocaine.

12The trial judge then referred to the expert evidence. He noted Dr. Pelletier’s testimony that incapacity from crack cocaine could result for a first time user and that feelings of being wobbly, incapacitated and overwhelmed could be consistent with a first time user. He acknowledged Dr. Rosenbloom’s evidence that feeling wobbly, numb and unable to move are not symptoms consistent with the use of cocaine. However, the trial judge stated that he was not prepared to find Dr. Pelletier was wrong in his opinion that cocaine can, in some cases, cause incapacity in a first time user and concluded that he was satisfied, beyond a reasonable doubt, that the use of cocaine had had a “numbing and paralyzing effect” on PP, resulting in her incapacity to give consent.

13At the oral hearing of the appeal, the appellant raised a single ground, namely, that the trial judge erred in failing to adequately consider and deal with the expert evidence. He asserts that the trial judge gave no reason for rejecting Dr. Rosenbloom’s opinion and that it was incumbent on him to do so or, at least, to explain why he preferred Dr. Pelletier’s opinion to that of Dr. Rosenbloom.

14We would not give effect to this ground of appeal.

15The trial judge was alert to the dispute between the experts and he appreciated the relevance of the expert evidence to the issue of PP’s credibility. It was open to him to reject the opinion of Dr. Rosenbloom and to accept that of Dr. Pelletier. However, it is not clear that the trial judge actually preferred Dr. Pelletier’s opinion to that of Dr. Rosenbloom. What is clear is that the trial judge did not reject Dr. Pelletier’s evidence that it was possible that cocaine had produced the effects on PP as she described. We understand these comments of the trial judge as an explanation for his implicit finding that Dr. Rosenbloom’s testimony did not undermine PP’s credibility.

16Even if the trial judge erred by failing to adequately deal with the expert evidence, we would not interfere. PP testified that she was unable to move or speak and the trial judge accepted her evidence. Whether PP’s inability was caused by the crack-cocaine or fear, the trial judge was entitled to accept her testimony - as he did - that she was unable to react. Having rejected the appellant’s evidence and not been left in doubt by it, and having accepted PP’s evidence, including that she was unable to move, speak or think clearly and that she did not consent to the sexual acts, the trial judge was entitled to find that the offence had been proved beyond a reasonable doubt.

DISPOSITION

17Accordingly, the appeal is dismissed. The sentence appeal is dismissed as abandoned.