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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-04-19

Docket: C62961

Panel: Feldman, Roberts and Trotter JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

M.B. Appellant

Counsel

Mark Halfyard and Breana Vandebeek, for the appellant

Nancy Dennison, for the respondent

Hearing and Appeal

Heard and released orally: April 19, 2018

On appeal from: the judgment of Justice T. Bielby of the Superior Court of Justice, sitting without a jury, dated October 18, 2016.

Reasons for Decision

[1] Conviction for Sexual Assault

The appellant appeals from his conviction for sexual assault.

[2] Credibility Analysis and Inconsistency

The appellant submits that the trial judge erred in his credibility analysis of the complainant's evidence. In particular, the appellant takes issue with the trial judge's explanation for the major inconsistency in the complainant's description of her position when she woke up to the assault: on one version, she woke up on her back; on the other version, she woke up on her stomach and was turned over.

[3] Appellant's Arguments

The appellant advances two arguments. First, the trial judge impermissibly relied on the scientific concept of memory fragmentation caused by alcohol consumption without the support of expert evidence. Second, it was unfair for the trial judge to make this finding without giving counsel an opportunity to address it.

[4] Court's Response

We disagree.

[5] Trial Judge's Analysis

The trial judge carefully reviewed the complainant's evidence and was alive to its frailties. The trial judge accepted the complainant's explanation for her poor memory and found that it did not affect her credibility in relation to her core memory of the sexual assault.

[6] Memory Fragmentation Finding

We do not read the trial judge's use of the words "memory fragmentation" as a scientific term. Rather, he was summarizing the complainant's own explanation for her inconsistent and sometimes incoherent memory of the relevant events, which she attributed to her excessive alcohol consumption. It is no more than a finding, based on the evidence, that on both occasions when she described what happened, the complainant was unable to consistently access from her memory some of the details of what occurred on the night of the incident, because of her intoxication.

[7] Fairness of Proceedings

Because these findings were open to the trial judge and given that the effect of the complainant's intoxication was a significant issue at trial, there was no unfairness.

[8] Cellphone Evidence

The appellant submits further that the trial judge erred in failing to address the complainant's refusal to provide her cellphone to the police to attempt to recover the deleted text messages that she said the appellant sent to her the day following the assault.

[9] Complainant's Testimony Regarding Cellphone

The complainant testified that the appellant sent her texts asking her not to say anything or tell anyone that he had raped her. When asked in cross-examination why she did not give her cellphone to the police, the complainant responded that she "just didn't". During her re-examination, the complainant testified that she did not want to give her cellphone to the police because she understood the police would keep it for months.

[10] Court's Response to Cellphone Issue

We do not accept this submission.

[11] Analysis of Cellphone Evidence

First, we do not see this issue as a material problem that the trial judge was required to address. The trial judge dealt with the more important issue of the reason for the complainant's deletion of the text messages, accepted her explanation of humiliation and embarrassment, and determined that the deletion did not affect her credibility. Moreover, there was no certainty that the police could have retrieved the text messages.

[12] Disposition

Accordingly, the appeal is dismissed.

K. Feldman J.A.

L.B. Roberts J.A.

G.T. Trotter J.A.