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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. Byun, 2020 ONCA 600

DATE: 20200923

DOCKET: C67426

Fairburn A.C.J.O., MacPherson and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sang Jun Byun

Appellant

Sang Jun Byun, acting in person

Andrew Furgiuele, appearing as duty counsel

Andrew Hotke, for the respondent

Heard: September 9, 2020 by video conference

On appeal from the conviction entered on June 25, 2019 by Justice Richard T. Knott of the Ontario Court of Justice.

REASONS FOR DECISION

[1] In June 2019, the appellant was convicted of sexual assault by Knott J. of the Ontario Court of Justice following a trial in Brockville. In September 2019, the appellant received a custodial sentence of 14 months plus three years probation, a ten year weapons prohibition and a 20 year SOIRA order.

[2] The appellant appeals the conviction.

[3] The appellant, complainant and four other people went to a cottage for a weekend. The appellant and complainant did not know each other prior to this weekend. The complainant was married; her husband did not come to the cottage. A great deal of alcohol was consumed by the attendees, including the appellant and the complainant.

[4] The appellant and the complainant went to sleep in different bedrooms. At some time during the night, the appellant went to the washroom to vomit. He then went to the complainant’s bedroom and got into her bed. He testified that he did not see anyone else in the bed when he entered.

[5] The complainant testified that she awoke to a man having intercourse with her. She initially thought it might have been a dream or her husband. She pushed the person off her and, along with other occupants of the cottage who were now awake, confronted the appellant, while making a recording of part of the confrontation. Due to her intoxication, there were certain gaps in her memory of the events, including how and when she went to the bedroom.

[6] The appellant testified that he awoke to the complainant hugging him from behind and touching his penis. He said that the complainant flipped him over and initiated intercourse. The intercourse ended after a couple of minutes and he went back to sleep.

[7] In his reasons, the trial judge rejected the accused’s evidence. He found that it was contradicted by the complainant’s evidence, her description of his post-conduct behaviour, the recorded confrontation, and the accused’s conversation with one of the other men at the cottage. At no point on the recording or in his conversation with that man did the accused say that the complainant initiated the intercourse or profess his innocence.

[8] The trial judge said that he had a doubt as to whether the accused entered the bedroom knowing that it was occupied. He found that the complainant was awakened by a man engaging in sexual intercourse with her. He concluded that the complainant did not consent to intercourse:

I accept the complainant’s evidence without a reasonable doubt that she was awakened by a man engaging in sexual intercourse with her. She pushed the man off her. She may have thought the man was her husband then may have guessed it was [one of the other men at the cottage]. She did not know it was the accused who was engaging in sexual intercourse until she saw the accused at the end of the bed.

[9] The trial judge considered whether the accused had an honest but mistaken belief with respect to the complainant’s consent. He determined that the defence was not available to the accused because any such belief was anchored in his own self-induced intoxication. The trial judge also found that the accused did not take reasonable steps to make sure that the complainant was awake, knew she was engaging in sexual activity, and with whom.

[10] On this appeal, the appellant advances two grounds of appeal.

[11] First, the appellant contends that the trial judge erred by rejecting the defence of an honest but mistaken belief in consent on account of reasonable steps not being taken to ascertain consent.

[12] We do not accept this submission. We see no error with the trial judge’s approach to reasonable steps. The trial judge concluded that the appellant “took no steps to ensure [the complainant] was awake and aware of what was going to transpire. He took no steps to ensure she knew, in the dark of the room, that she was having sexual intercourse with the accused.” The appellant did not point to any evidence that would undermine the trial judge’s conclusion on this issue. This conclusion is owed deference.

[13] Second, the appellant asserts that the trial judge erred in rejecting the defence of an honest but mistaken belief in consent on account of self-induced intoxication.

[14] We are not persuaded by this submission. The trial judge said:

He was drunk. He knew she was drunk.

I do not expect some drunken man to take all reasonable steps such as turning on the lights and having a full and frank discussion about what they were about to engage in, but the accused took no steps.

But the accused’s defence that the complainant consented to the sexual activity was due to his own self-induced intoxication, and he did not take reasonable steps in the circumstances, known to him at the time, to ascertain the complainant was consenting.

[15] In our view, this was a full and sound assessment of the defence presented by the appellant.

[16] The appellant is on bail pending appeal. At the hearing, the parties agreed that he would surrender into custody when the court provided notice of the release of its decision.

[17] The appeal is dismissed.

“Fairburn A.C.J.O.”

“J.C. MacPherson J.A.”

“S. Coroza J.A.”