W A R N I N G

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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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).

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

CITATION: R. v. Cooper, 2010 ONCA 201

DATE: 20100317

DOCKET: C50036

Doherty, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

James Cooper Respondent

Greg Skerkowski, for the appellant Robert Sheppard, for the respondent

Heard and orally released: March 12, 2010

On appeal from the acquittals entered by Justice J.M.W. Donohue of the Superior Court of Justice, dated January 16, 2009.

ENDORSEMENT

[1] The respondent was acquitted on the following counts:

• sexual assault of W.W.; • assaulting W.W. with a weapon (a paddle); • assaulting W.W. with a weapon (a hammer); • assaulting C.B. with a weapon (a stick); and • assaulting C.B. with a weapon (a belt).

[2] The respondent’s defence to all of the charges, except the assault on W.W. with a hammer, was that the complainants had willingly consented to the activities. On the charge of assault with a hammer, the respondent contended that he had struck W.W. with the hammer when he and she were working on a project and he slipped, lost his balance and accidentally hit her with the hammer he had in his hand.

[3] The respondent was in a position of authority over the two complainants. There was considerable evidence that the complainants submitted to the assaultive behaviour, and in the case of W.W., to repeated sexual intercourse, because of the exercise of that authority over them by the respondent. W.W. also testified that she consented to sexual activity because she was very afraid of the respondent.

[4] The trial judge appears to have addressed the question of whether the Crown had proved the absence of consent beyond a reasonable doubt on the premise that the complainants were adults and were in a position to determine for themselves whether they were prepared to agree to the activities in question. The complainants were young adults, although C.B. is somewhat intellectually challenged.

[5] Normally, the premise relied on by the trial judge would be entirely appropriate. However, in this case, there was substantial evidence that this was far from a normal situation involving potentially consenting adults. There was evidence that the respondent ran his household in a very authoritarian manner, relying on supposed religious doctrine to justify his demands and his claim to have authority over all who were within the household. There was evidence from several witnesses that the respondent acted as if he was entitled to do whatever he wanted to do and that the occupants of the home were expected to submit to the respondent’s demands.

[6] The trial judge’s reasons do not come to grips with the question of whether the apparent consent by the complainants was vitiated by the respondent’s exercise of authority over them. In addition, the reasons do not address the claim by W.W. that she consented out of fear of physical violence on the part of the respondent.

[7] The trial judge makes no reference to the operative provisions of the Criminal Code (s. 265(3)(b) and (d). More importantly, the trial judge never addresses any of the evidence that is relevant to these questions. It is clear from the Crown’s submission that it was the Crown’s theory that any apparent consent was vitiated by either threats of force or the exercise of authority. The failure to address that issue constitutes an error in law.

[8] The Crown, in our view, has met the onus of demonstrating that but for the error, the result may well have been different. The Crown is entitled to a new trial on the counts on which consent was the issue. Those charges are sexually assaulting W.W., assaulting W.W. with a weapon (a paddle) and the two counts of assaulting C.B. with a weapon.

[9] The count of assault with a weapon involving the hammer raises a different issue. Consent was not in play on this charge. The trial judge ultimately determined that he had a reasonable doubt whether the respondent had intentionally struck W.W. with the hammer. He was not prepared to accept in its entirety either the description given by W.W. or the appellant. He looked to other evidence to assist him in resolving the charge. There was little evidence to assist the trial judge. He did, however, consider the extent of the injury suffered to be relevant to his assessment of whether the Crown had proved beyond a reasonable doubt that the respondent intentionally struck the complainant with the hammer. He determined that the extent of the injury was not consistent with W.W.’s description. That conclusion was open to him and did not entail an improper resort to judicial notice. The Crown has not pointed to an error of law that would justify interfering with the acquittal. The appeal on this charge (count 3) is dismissed.

“Doherty J.A.”

“Armstrong J.A.”

“David Watt J.A.”