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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
Doherty, Feldman and Brown JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Christian St. Roch
Appellant
Joseph Di Luca, for the appellant
Jessica Smith Joy, for the respondent
Heard and released orally: June 22, 2016
On appeal from the conviction entered on June 13, 2014 by Justice Hugh K. O’Connell of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1The appellant was convicted of sexual assault by a judge sitting without a jury. He appeals on three grounds:
The trial judge erred in finding that there was no air of reality to the defence of honest but mistaken belief in consent;
The trial judge misapprehended the evidence of when the complainant said: “this is not going to happen”, and;
The trial judge erred in his reliance on the complainant’s demeanour in assessing her credibility.
We would not give effect to these grounds.
2The trial judge gave lengthy and detailed reasons for his decision. He instructed himself on the rule in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742,and on how to assess the credibility of the witnesses. He specifically found that he believed the complainant and disbelieved the appellant. It was not an R. v. D. (J.J.R.) (2006), 2006 40088 (ON CA), 215 CCC (3d) 252, type of case where he disbelieved the appellant because he believed the complainant.
3On the first issue, the trial judge was alive to the issue of honest but mistaken belief in consent and specifically found that the appellant knew that the complainant was not consenting to intercourse and oral sex on the Saturday morning. The appellant testified that they had had consensual sex the night before. The trial judge rejected that assertion as completely untrue. Had that story been accepted by the trial judge, it may have been a basis to consider the defence as plausible in respect of sex on the Saturday morning. However, having rejected that story as untrue, that undermined the basis for the appellant to believe that there was consent on Saturday morning when there was not.
4Counsel submits that on the complaint’s own evidence of events on the Saturday morning, one can construct a version of the events that gives an air of reality to the defence of honest but mistaken belief in consent by the appellant. We agree with the Crown that the differences in the two versions given by the complainant and the appellant, particularly of the actual forced intercourse on Saturday morning, belie any such narrative. The trial judge found that the appellant knew that the complainant was not consenting. That finding forecloses this defence.
5On the second issue, the Crown acknowledges the misstatement by the trial judge regarding the complainant’s statement to the appellant that “it is just not going to happen”, as having occurred Friday night and not on the Saturday. We agree with the Crown that that error did not impact the trial judge’s conclusion as he did not refer to it in his analysis of consent or in his analysis of honest but mistaken belief in consent.
6The third alleged error is that the trial judge over-emphasized the complainant’s post-event demeanor. We agree with the Crown that the trial judge was entitled to rely on this evidence in his assessment of her credibility. Furthermore, he did not use her demeanor to decide whether there was an air of reality to the defence of honest but mistaken belief in consent by the appellant.
7For the above reasons, the appeal is dismissed.
“Doherty J.A.”
“K. Feldman J.A.”
“David Brown J.A.”
