Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

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. 486.5(1) , (2) , (2.1) , (3) , (4) , (5) , (6) , (7) , (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15 ; 2015, c. 13, s. 19

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: 20220308 DOCKET: C67954

Rouleau, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Casey Matti Henry Appellant

Counsel: George (Knia) Singh, for the appellant Rebecca Schwartz, for the respondent

Heard: March 2, 2022 by video conference

On appeal from the conviction entered by Justice Sean F. Dunphy of the Superior Court of Justice on November 12, 2019, and from the sentence imposed on January 17, 2020.

Reasons for Decision

[1] Mr. Henry appeals his conviction, and seeks leave to appeal his sentence, on one count of sexual assault.

[2] The background facts may be stated simply. The appellant and the complainant met online. They made plans to meet up that same day. The appellant picked the complainant up in his car. He had a friend with him. The appellant eventually dropped the friend off in Brampton. The appellant and the complainant then went to the appellant’s place where he showered. He dressed in boxers and a t-shirt and lay on his bed. He invited the complainant to join him there. Sexual activity took place. The appellant believed it was consensual. The complainant says it was not.

[3] The central issue at trial was consent. Credibility played an obvious role in the determination of that issue. The appellant raises three grounds of appeal: (i) the trial judge erred in dismissing an application under s. 276 of the Criminal Code, R.S.C. 1985, c. C-46; (ii) there was a reasonable apprehension of bias on the part of the trial judge; and (iii) the trial judge erred in his assessment of the credibility of the complainant.

[4] We do not accept any of these challenges to the trial judge’s decision. In terms of the first ground, evidence of a complainant’s sexual activity extrinsic to the subject matter of the charge is presumptively inadmissible: Code , s. 276(2); R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 40 . The issue in this case was whether a text message that the complainant sent to the appellant regarding her experiences with Black men, along with evidence that the complainant had a history of going to bars and meeting men, satisfied the criteria for admissibility under s. 276 . [1] In our view, the trial judge was correct in finding that they did not. In particular, we agree with the trial judge that the comments regarding Black men were sexual in nature and, considering the context in which they were made, including the fact that they were raised by the appellant, are not suggestive of any animus on the complainant’s part. We also agree with the trial judge that the contents of the text message regarding her prior experiences were not relevant to the issues in the trial and that the evidence about past conduct relating to bars was, at best, peripherally relevant.

[5] On the second ground of appeal, we do not see anything in the record that would substantiate the assertion that the trial judge exhibited any bias. The fact that the trial judge interjected frequently during defence counsel’s argument of the s. 276 application does not evidence bias. It is clear that the trial judge was having some difficulty accepting the points that counsel was trying to make, and he made that clear to counsel in an effort to get a better explanation. While the trial judge might have been better to restrain the frequency of his interventions, in order to avoid creating a potential appearance of unfairness, his conduct does not rise to the very high level required for a conclusion of bias: R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at para. 84 .

[6] Further, the fact that the trial judge intervened on a few occasions in the course of the appellant’s cross-examination of the complainant but did not exercise more control over the complainant (who was a difficult witness) when she was being cross-examined does not demonstrate bias. It is up to each trial judge to decide how and how much they will intervene in those types of situations. Some judges will do more; some will do less. Bias does not necessarily arise from deciding one way as opposed to the other. It is worthy of note, on this point, that the trial judge took the same approach when the appellant was cross-examined and also proved to be difficult.

[7] On the third ground of appeal, the appellant has not been able to point to anything in the record that undermines the conclusions that the trial judge reached regarding the credibility of either the complainant or the appellant. The trial judge explained why he believed the complainant and, in doing so, he addressed many of the inconsistencies and other issues that arose from her evidence. The trial judge also explained the difficulties he had with the appellant’s evidence. Ultimately, that was the trial judge’s call to make. The appellant has failed to identify a proper basis that would permit this court to interfere with those findings.

[8] On the sentence appeal, the trial judge correctly identified the range of sentence for this offence as being between three and five years. He decided on a sentence of three and one-half years. In reaching his conclusion, the trial judge noted that the sexual assault involved forced fellatio and vaginal intercourse. He also found that the appellant’s behaviour towards the complainant was demeaning. The trial judge’s decision on sentence is entitled to deference. Absent an error in principle, or the failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor, an appellate court is not warranted in intervening: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44 . There are no such errors, or failures, in this case.

[9] The conviction appeal is dismissed. Leave to appeal sentence is granted but the appeal is dismissed.

“Paul Rouleau J.A.”

“I.V.B. Nordheimer J.A.”

“J. George J.A.”

[1] We recognize that references to evidence relating to an application under s. 276 of the Criminal Code are covered by a publication ban pursuant to s. 278.95 . However, we consider it appropriate, in this case, to exercise our discretion to publish our reasons: R. v. N.H., 2021 ONCA 636, 158 O.R. (3d) 294 .