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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 2018-05-31

Docket: C64075

Panel: Strathy C.J.O., Juriansz and Hourigan JJ.A.

Between

Her Majesty the Queen Respondent

and

A.H.M. Appellant

Counsel:

• Michelle M. Dwyer, for the appellant
• Andrew Cappell, for the respondent

Heard and released orally: May 25, 2018

On appeal from: The conviction entered on December 14, 2016 and the sentence imposed on April 7, 2017 by Justice Gordon D. Lemon of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of sexual assault and common assault. He was sentenced to 42 months' imprisonment (less six months for pre-sentence custody) on the former and one year concurrent on the latter. He appeals his conviction for sexual assault. He has abandoned his sentence appeal.

[2] The trial turned entirely on the credibility of the complainant on the one hand, and whether the appellant's evidence raised a reasonable doubt on the other.

[3] The complainant's evidence was that the appellant had attacked her and forced sexual acts on her. The appellant portrayed himself as a Good Samaritan who had invited her into his home to do her laundry and shower. He said the sexual activity was consensual and that it was only after he refused to give her money that she ran out of the house naked on a cold February day and screamed, "He's trying to rape me".

[4] At the outset of his reasons, the trial judge correctly instructed himself on the requirements of R. v. W.(D.), [1991] 1 S.C.R. 742. He reviewed the evidence. He noted that there were significant problems with the credibility of both the complainant and the appellant.

[5] He observed that if there were no corroborative evidence, he could easily reject the evidence of both. On appeal, the appellant's argument was that the evidence referred to by the trial judge was not sufficiently corroborative.

[6] We do not accept that submission. The trial judge found corroboration in the fact that the complainant fled the house naked in February, leaving all her belongings behind, including some in the washing machine. He also found corroboration in the neighbours' description of the complainant's state and demeanor on fleeing. These, in his words, provided "powerful confirmation of her evidence of being sexually and physically assaulted".

[7] The trial judge was entitled to find corroboration in this evidence and we see no errors in his conclusions. Accordingly, the appeal is dismissed.

"G.R. Strathy C.J.O."

"R.G. Juriansz J.A."

"C.W. Hourigan J.A."