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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
MacPherson, Benotto and Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
M.R.
Appellant
Amy Ohler, as duty counsel
Michael Fawcett, for the respondent
Heard: April 27, 2020 by Teleconference
On appeal from the conviction entered on May 15, 2019 and the sentence imposed on July 3, 2019 by Justice James R. Chaffe of the Ontario Court of Justice.
REASONS FOR DECISION
1The appellant was convicted of sexual exploitation of a young person contrary to s. 153 of the Criminal Code following a trial before Chaffe J. of the Ontario Court of Justice. He received a custodial sentence of ten months for this offence.
2The appellant appeals the conviction and the sentence.
3The complainant and the appellant testified at the trial. The trial judge believed the complainant and rejected the appellant’s testimony.
4The appellant and the complainant’s mother were in an intimate relationship. The appellant had a good relationship with the mother’s two children from a previous relationship. One of those children was the complainant. As expressed by the trial judge, “[The complainant] and [the appellant] had a longstanding relationship which, on both accounts, had many positive features.”
5The complainant had a back injury and the appellant would occasionally give her a back massage. On one occasion, the complainant testified, the massage expanded to include sexual contact. As described by the trial judge:
[The complainant] testified about a sexual assault during a massage in the summer of 2016. She had been massaged by [the appellant] before but not like this. She was in her mother’s bedroom when [the appellant] came in and rubbed her back while she was sitting up. [The complainant] lay down on her stomach and he began to massage her back having pushed up her shirt using massage oil, olive oil as administered by [the appellant], then straddle her upper legs, undid her bra strap and massaged her whole back. During this massage, he attempted to move his hands down her sides and under her breasts but [the complainant] pulled her arms in and asked what he was doing. He continued to massage her then began to kiss and lick her back. She could feel his beard. He ground his hips into her buttocks until he finally lay on top her and got off telling her that she had given him a real workout this time.
6The trial judge accepted this description and concluded that it established the criminal charge.
7The appellant contends that some of the language in this passage, especially the words “ground his hips into her buttocks”, is inconsistent with the complainant’s description of the event and amounts, therefore, to a misapprehension of the evidence.
8We do not accept this submission. Several times the complainant testified about the appellant’s physical movements during the massage. Typical of her testimony was this passage:
Q. … part of his body was he pushing against you?
A. Like, his hips and his, like legs where he was sitting on me. Oh, and throughout that, when he was still rubbing my back, he was still licking my back and kissing my back.
Q. Okay. And what part of his body did you feel?
A. Oh, he was, like pushing his hips and his, like – oh, like upper legs every time he was rubbing my back....
In our view, the complainant’s testimony and the trial judge’s description are similar. There was no misapprehension of the evidence.
9Second, the appellant submits that the trial judge erred by not addressing inconsistencies between the complainant’s testimony and her statement to the police.
10We are not persuaded by this submission. The core of the complainant’s statement to the police and her trial testimony was that she experienced an unwanted sexualized massage from the appellant. In a fairly lengthy closing address at the trial, defence counsel said nothing about alleged inconsistencies between the complainant’s police statement and her trial testimony. Accordingly, the trial judge was entitled to conclude: “There were no significant inconsistencies in her evidence at trial and her statement to police.”
11Third, the appellant appeals his sentence of ten months incarceration. Although there are potential immigration consequences of a ten-month sentence, we cannot say that the sentence is unreasonable or demonstrably unfit, especially in light of the complainant’s youth and the appellant’s position of trust in the family dynamic.
12The appeal is dismissed.
“J.C. MacPherson J.A.”
“M.L. Benotto J.A.”
“I.V.B. Nordheimer J.A.”