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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 2020-02-27 Docket: C66209

Judges: Watt, Pardu and Roberts JJ.A.

Between: Her Majesty the Queen, Respondent and Eric German Flores, Appellant

Counsel: Nicholas A. Xynnis, for the appellant Christine Tier, for the respondent

Heard and released orally: February 24, 2020

On appeal from the conviction entered on January 23, 2018 and the sentence imposed on July 5, 2018 by Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was convicted of a single count of sexual assault after a jury trial in the Superior Court of Justice. He was sentenced to a term of imprisonment of four years less credit for pre-disposition custody. The net sentence imposed was three years, seven months. He appeals both conviction and sentence.

The Background Facts

[2] The appellant and complainant met when both were attending alcohol treatment programs at a local addiction and mental health facility.

[3] Several weeks after the conclusion of their respective programs, the complainant lost a big project in her chosen field. She relapsed and drank steadily for a week. She recognized ultimately that she needed to go to a detox centre. After unsuccessful attempts to enlist the assistance of two friends, she called the appellant. He agreed to help her.

[4] When the appellant arrived at the complainant’s apartment, the complainant’s dog-walker was also there. The appellant told the dog-walker that she could leave. He would make dinner for the complainant and then take care of her.

[5] According to the complainant, the appellant approached her as she was lying on the couch. He got on top of her. He said he always found her “hot and incredibly sexy”. Despite her resistance, the appellant removed the complainant’s pants, performed oral sex upon her and then had intercourse with her, during which he ejaculated. He did not wear a condom.

[6] The appellant testified. He said that the sexual activity between them was consensual. He offered to wear a condom or to withdraw before ejaculation, but the complainant declined his offers.

The Appeal from Conviction

[7] On the appeal from conviction, the appellant advances two grounds of appeal. Each has to do with events that took place after the sexual intercourse. More particularly, each concerns the use the trial judge instructed the jury they could make of the evidence of those events.

Ground #1: The Examination and Treatment Evidence

[8] The jury heard evidence that the complainant attended at a local hospital where a nurse completed a sexual assault examination kit, and a report detailing her findings. The complainant also undertook a month-long prophylactic treatment program (PEP) during which she experienced very unpleasant side effects. The purpose of this program was to ensure that the unprotected intercourse did not result in any sexually transmitted diseases.

[9] In her instructions to the jury, the trial judge explained how this evidence could be used in reaching a verdict. She said:

You will recall that [B.C.] testified that she underwent a sexual assault examination at Women’s College Hospital as she was concerned because the sexual assault was unprotected. As part of her treatment, swabs were taken vaginally and medication was prescribed to prevent infectious diseases. She testified that the symptoms from the medication made her physically ill for a month, but she took it all the way through.

It has long been held that post-event demeanour of a sexual assault victim can be used as circumstantial evidence to corroborate the complainant’s version of events. When assessing the credibility of [B.C.], you may find that her testimony regarding her willingness to undergo an invasive sexual assault examination corroborates her version of events. It is up to you.

[10] In our view, the evidence that the complainant reported to hospital, had administered a sexual assault examination kit, and later followed a post-exposure prophylactic treatment program (PEP), was relevant and admissible at trial. While the use of the language “corroborates” the testimony of the complainant was ill-chosen, we are not persuaded that its inclusion caused the appellant any prejudice.

[11] In this case, there was a significant body of evidence that described the complainant’s physical and emotional condition after the appellant had left her apartment. That this evidence was not marshalled in support of the complainant’s claim enured to the benefit of the appellant.

[12] In addition, in this case, the PEP evidence had some significant probative value in that, according to the appellant, the complainant had declined two offers from the appellant to protect herself from sexually transmitted diseases. In these circumstances, it seems unlikely that, having foregone those offers, she would willingly submit to a regimen of medication that she described variously as “dreadful”, “unbelievable” and “horrific”.

[13] It is also not without significance that trial counsel was content with what the trial judge proposed to say about this evidence before the charge was delivered and raised no objection thereafter.

Ground #2: The Text

[14] The second ground of appeal against conviction relates to the trial judge’s instructions to the jury about their use of a text the appellant sent to the complainant when he learned that he would be charged with sexual assault. This evidence was admitted in the defence case without any adjudication on its admissibility.

[15] The principal complaint in this court is that in her instructions to the jury, the trial judge left the issue of spontaneity to the jury when this issue had already been decided because the evidence had been admitted. In this case, it would have been preferable had trial counsel sought a ruling on admissibility in advance of tendering the text message. However, once the evidence had been admitted, trial counsel made use of it in closing address. We are not persuaded that the jury instructions about its use prejudiced the appellant in any way.

The Appeal from Sentence

[16] On the appeal from sentence, the appellant says that the trial judge erred by concluding that the offence involved a breach of trust. Although this was not a traditional trust relationship, it is clear that the complainant sought the appellant’s assistance in getting to a detox facility. The appellant undertook to do so. At the very least, he took advantage of a vulnerable person whom he knew required help. This attracted denunciation and deterrence as the paramount sentencing objectives. What is more, the sentence imposed was well within the range of sentences applicable to this offence and the offender who committed it. There is no basis upon which this court can interfere.

Disposition

[17] The appeals from conviction and sentence are dismissed, except to the extent that any victim surcharge imposed at trial is set aside.

“David Watt J.A.”

“G. Pardu J.A.”

“L.B. Roberts J.A.”