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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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
Watt, Trotter and Harvison Young JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
C.P.
Appellant
Paul J.I. Alexander, for the appellant
Nicole Rivers, for the respondent
Heard: by video call on June 8, 2020
On appeal from the conviction entered on June 8, 2018 and the sentence imposed on August 3, 2018 by Justice Marcella Henschel of the Ontario Court of Justice.
REASONS FOR DECISION
1The appellant was convicted of assault and sexual assault of his then wife. He argues that the trial judge misapprehended the evidence and thus erred in:
- finding the complainant had no motive to fabricate;
- finding that the WhatsApp message, correctly translated, amounted to an admission of guilt; and
- finding that the complainant had disclosed the sexual assault allegations to her family prior to the request for immigration documentation.
2We would not give effect to any of these grounds.
3As far as the finding that there was no motive to fabricate, the trial judge concluded that the record did not support the appellant’s claim that the complainant came up with the allegations after learning (and believing) that she could be subject to deportation on the basis that the marriage lasted less than two years unless she established that the marriage ended because of abuse. The trial judge’s conclusion was open to her on the evidence. Most significantly, the trial judge found that the complainant had told her parents of the abuse months before she returned to Canada and learned about any possible immigration consequences of the marriage breakdown.
4The trial judge carefully considered both parties’ evidence as to the meaning of the WhatsApp message. She rejected the appellant’s explanation of the slapping incident because it made no sense in light of his evidence that he had “accidentally” hit her when he had tapped her on the shoulder to ask her to shut off her laptop and she turned around. She was entitled to do so. She considered this in the context of the evidence as a whole. Read fairly, we do not agree that the trial judge misapprehended the appellant’s evidence on the way in which the slap occurred. Moreover, even if she had, this difference was not material because the appellant’s version makes no more sense in the circumstances, and particularly in light of the complainant’s reaction.
5In addition, the trial judge was entitled to accept the complainant’s version of the WhatsApp message.
6Finally, we do not agree that the trial judge misapprehended the evidence that the complainant had previously disclosed “everything” to her parents as including the incident of sexual abuse. It is clear that she at the very least disclosed the slapping incident. Even if the trial judge had inappropriately concluded that “everything” included the sexual assault incident, the appellant’s argument that the sexual assault was material to the immigration consequences of the breakdown of the marriage was entirely speculative. The evidence fell short of establishing that the complainant personally thought she could be deported although she knew the rules and knew that she had to follow a process “step by step”. Read as a whole, the reasons provide ample support for the trial judge’s rejection of the argument that the complainant fabricated the sexual assault allegation because she was afraid of being deported.
7Finally, we are jointly asked to delay release of this decision until the pandemic passes. We see no basis for doing so.
8As agreed by the parties, the victim surcharge imposed by the trial judge should be set aside. The appeal is otherwise dismissed.
“David Watt J.A.”
“Gary Trotter J.A.”
“A. Harvison Young J.A.”
