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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court of Appeal for Ontario

Date: 20230704 Docket: C65856

Fairburn A.C.J.O., Zarnett and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

J.M. Appellant

Counsel: Adrian Forsythe, for the appellant Jacob Millns, for the respondent

Heard and released orally: June 29, 2023

On appeal from the conviction entered on September 28, 2017 and the sentence imposed on May 8, 2018 by Justice Jocelyn Speyer of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals his convictions for sexual assault, sexual assault with a weapon, assault, and criminal harassment. The trial judge found that the appellant physically and sexually assaulted the complainant, his intimate partner, on several occasions, and that, in the aftermath of their relationship, he criminally harassed her. The appellant argues that the trial judge 1) erred in her assessment of the complainant’s credibility, 2) placed undue weight on her demeanour, 3) erred in accepting the complainant’s evidence regarding a sexual assault that she said occurred in public, 4) erred in her assessment of photographic evidence, and 5) unevenly scrutinized the evidence. While the appellant has appealed sentence, his counsel advised at the outset of the hearing that the sentence appeal was not being pursued.

[2] The appellant’s argument that the trial judge failed to address material inconsistencies in the complainant’s testimony fails because each inconsistency pointed out by the appellant at trial, and now on appeal, was expressly considered. The trial judge undertook a careful analysis of the evidence and reconciled all credibility issues she had to address. Her reasons, when viewed in light of the record and counsel’s submissions, explain why she accepted the complainant’s evidence.

[3] We do not agree with the appellant’s submission that the trial judge placed undue weight on the complainant’s demeanour. Consideration of a witness’s demeanour is permitted and will only become problematic when it is overemphasized or if undue weight is placed on it. The trial judge committed no such error.

[4] The appellant further argues that the trial judge erred in accepting the complainant’s evidence in respect of a sexual assault she says occurred in public, on a GO train. He claims that this particular allegation was “incredible”. While this event was said to have occurred during the afternoon rush hour, the complainant maintained that the train was empty enough for both she and the appellant to find adjacent seats, facing towards the door, and away from other passengers. The trial judge did address the appellant’s submission that these events could not have happened as described. She simply rejected the appellant’s argument, which is not a basis to interfere.

[5] The trial judge addressed the complainant’s “troubling” evidence that she did not know how to take a “selfie” photograph, as an explanation for not documenting the injuries she said she sustained after one of the assaults. Alive to the concerning aspects of the complainant’s evidence, the trial judge concluded that “In the end, I do not find that this evidence tells against the complainant’s general honesty and reliability.” The trial judge was entitled to reach that conclusion and her reasons, properly understood and when read as a whole, make clear why she did.

[6] We also reject the appellant’s uneven scrutiny argument. With respect to the two defence witnesses, their evidence was of limited value, which was noted by the trial judge and explains why she spent so little time on it. With respect to the trial judge’s treatment of the appellant’s evidence, her reasons sufficiently explain why she rejected it and found that it did not raise a reasonable doubt.

[7] The appellant in essence invites us to retry the case, which is not the function of this court. The result is amply supported by the record.

[8] The appeal against conviction is dismissed. The sentence appeal is dismissed as abandoned.

“Fairburn A.C.J.O.”

“B. Zarnett J.A.”

“J.George J.A.