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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2018-04-12

Docket: C64105

Panel: Feldman and Benotto JJ.A. and Sachs J. (ad hoc)

Parties

Between

Her Majesty the Queen Respondent

and

G.H. Appellant

Counsel

Michael J. Venturi, for the appellant

Andrew Hotke, for the respondent

Hearing and Release

Heard and released orally: March 29, 2018

On appeal from: the conviction entered on April 19, 2017 by Justice M. Gregory Ellies of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] On April 19, 2017, the appellant was convicted of one count of sexual assault after a trial before a judge sitting alone. This is an appeal from that conviction.

[2] The appellant alleges that the trial judge made two errors. First, he submits that the trial judge erred in law by considering both parties' failure to climax as part of his credibility assessment of the appellant. Second, he argues that the trial judge erred when he failed to consider the potential for collusion between the complainant's family members who testified regarding the event.

[3] With respect to the first ground of appeal, the Appellant submits that in rejecting the appellant's evidence about what happened in the bedroom, the trial judge erroneously took judicial notice of an adjudicative fact when he stated the following at paragraph 68 of his reasons:

First, on the accused's evidence, there is no real explanation as to why neither party reached climax when they engaged in intercourse. That seems at odds with what one would expect if the two of them were such willing partners to such a novel encounter.

[4] According to the appellant, in making this comment, the trial judge made the same error that this court addressed in R. v. Perkins, 2007 ONCA 585.

[5] We disagree. First, unlike in Perkins, the trial judge did not reach outside the evidence to take judicial notice of an adjudicative fact relating to a crucial issue in the proceedings, namely the physiological functioning of the penis of a virile young man during sexual intercourse. Rather, he assessed the evidence that was before him about how the appellant said he and the victim behaved and measured that against a common sense understanding of human behaviour in the context of whether the sex was consensual. This is not an error.

[6] Second, read as a whole, the trial judge's reasons do not support a conclusion that his comments in paragraph 68 were essential to his rejection of the appellant's evidence. He also found the way in which the appellant described how the sex ended as being inconsistent with the appellant's other evidence about the nature of his interactions with the complainant and he found that the appellant's evidence that he and the complainant heard the only couple in the house having sex and paused during intercourse to laugh about it was contradicted by the evidence of the other couple that they did not have sex that night. Given this, it is not reasonable to conclude that the trial judge's assessment of the appellant's evidence would have been different had he not found that it was at odds with common sense because it did not include a real explanation for why the parties did not continue their sexual activity until one or both reached sexual climax.

[7] There are also two reasons why the appellant's second ground of appeal cannot succeed. First, collusion was not alleged by defence counsel in his submissions at trial. Second, there was no air of reality to the possibility of collusion, which "connotes more than the fact that two witnesses have discussed their evidence." (R. v. R.G.L., 185 C.C.C. (3d) 55 at para. 37 (per Weiler J.A. in dissent, but not on this point)).

[8] For these reasons, the appeal is dismissed.

"K. Feldman J.A."

"M.L. Benotto J.A."

"Sachs J. (ad hoc)"