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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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: 20240209 Docket: C68593

Tulloch C.J.O., Nordheimer and Gomery JJ.A.

Between

His Majesty the King Respondent

and

Mark Holland Appellant

Counsel: Richard Litkowski and J. Randall Barrs, for the appellant Jeremy D. Tatum, for the respondent

Heard: February 1, 2024

On appeal from the conviction entered on February 7, 2020 by Justice P. Andras Schreck of the Superior Court of Justice, with reasons reported at 2020 ONSC 846.

Reasons for Decision

[1] Mr. Holland appeals from his conviction for sexual assault. He was charged with sexually assaulting two females. He was convicted with respect to one of the females but not the other. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

[2] The charges relating to the two complainants were tried together. Charges regarding a third complainant were also on the original indictment but the appellant was successful in obtaining severance with respect to the third complainant. The appellant asserts that he ought to have been successful in severing the charges relating to the other two complainants. This is the first ground of appeal.

[3] At trial, which was before a judge alone, the appellant was convicted of sexual assault respecting one of the complainants but was acquitted with respect to the other. The appellant asserts that in convicting him, the trial judge made serious errors in his credibility analysis. This is the second ground of appeal.

[4] Respecting the first ground of appeal, it is well-established that the decision on severance is a matter to which appellate courts must give considerable deference. As Iacobucci J. observed in R. v. Litchfield, [1993] 4 S.C.R. 333, at para. 30: “an appellate court should not interfere with the issuing judge's exercise of discretion unless it is shown that the issuing judge acted unjudicially or that the ruling resulted in an injustice.”

[5] It is acknowledged that the severance application judge (who was not the trial judge) applied the proper factors in his severance decision as drawn from the decision in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146. The application judge balanced all of those factors. Ultimately, he concluded that severance should not be granted with respect to the two complainants with whom we are concerned here. In reaching that conclusion, the application judge referred to the fact that the Crown had said that it intended to bring a similar act application at the trial. The application judge found that the Crown had met the low threshold that its similar act application “may possibly succeed”.

[6] The appellant does not suggest that there is any error of law made by the application judge. Rather, he contends that the application judge focused solely on the Crown’s possible similar act application and erred in finding that it might succeed. The appellant submits that this led to a result that was unreasonable.

[7] We do not agree. First, the application judge did not determine the severance application solely in relation to the similar act application. As we have said, he considered all of the factors mentioned in Last. With respect to the similar act application factor, the application judge explained why he considered that the proposed similar act application met the low threshold of “may possibly succeed”. He cited the evidence that the Crown said it would adduce at trial that led him to that conclusion. The fact that the trial judge ultimately dismissed the Crown’s similar act application does not undermine the application judge’s conclusion on this point. The threshold is very different at the severance stage.

[8] In the final analysis, there is nothing that would demonstrate that the application judge acted unjudicially. Insofar as the appellant also attempts to rely on the injustice branch, the ultimate result at trial is relevant to a consideration of that branch: Last, at para. 15. Since the appellant elected to proceed with a judge alone trial, rather than a jury trial, and since the appellant was acquitted with respect to one of the two complainants, it is difficult to conclude that the failure to sever the two counts resulted in any injustice.

[9] In terms of the credibility analysis, the appellant takes issue with some of the reasons that the trial judge gave for not accepting his evidence. In considering this ground of appeal, we begin with the fundamental proposition that a trial judge’s credibility findings are entitled to a high degree of deference. A trial judge's assessment of the credibility of witnesses may be rejected only where it "cannot be supported on any reasonable view of the evidence”: R. v. Brunelle, 2022 SCC 5, 412 C.C.C. (3d) 489, at para. 8.

[10] We do not accept the appellant’s challenges to the trial judge’s credibility findings. More specifically, we do not accept that the trial judge used the appellant’s access to disclosure as a basis for impugning his credibility. There is nothing in the trial judge’s reasons, fairly read, that would support that contention.

[11] We also do not accept the appellant’s contention that the trial judge used impermissible reasoning relating to the plausibility of human behaviour or that he relied on common sense assumptions not grounded in the evidence. To the contrary, the trial judge made specific reference to the evidence, including the surrounding circumstances, to conclude that the appellant’s efforts to downplay his presence, his role, and his appearance, did not sit comfortably with the evidence as a whole.

[12] On that point, the appellant’s reliance on this court’s decision in R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433 is misplaced. The criticism in that case was that the trial judge had relied on assumptions or inferences not grounded in the evidence. The trial judge here directly connected his criticisms of the appellant’s evidence to other evidence that had been presented at the trial and which, in the trial judge’s view, made the appellant’s characterization of his conduct implausible. A trial judge is entitled to assess a witness’ evidence in that way.

[13] Finally, we reject the appellant’s submission that the trial judge gave unequal scrutiny between the appellant’s evidence and the evidence of one of the complainants. This submission is notoriously difficult to make out: see, for example, R. v. Kiss, 2018 ONCA 184, at para. 83. It has not been made out in this case.

[14] It is for these reasons that the appeal was dismissed.

“M. Tulloch C.J.O.”

“I.V.B. Nordheimer J.A.”

“S. Gomery J.A.”