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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. J.P., 2014 ONCA 54

DATE: 20140122

DOCKET: C56826

Goudge, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.P.

Appellant

J. Di Luca, for the appellant

Tracy Kozlowski, for the respondent

Heard and released orally: January 21, 2014

On appeal from the conviction entered on October 26, 2012 by Justice Johanne N. Morissette of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] The appellant raises two arguments. First, he says that the trial judge rendered inconsistent verdicts, particularly in convicting on three counts of sexual assault, but acquitting on a fourth count and then convicting on the charge of choking in relation to sexual assault where the complainant’s evidence of choking focused largely on the fourth count.

[2] We do not agree. The test for unreasonable verdicts based on inconsistency is a strict one, requiring that the verdicts be irreconcilable on any realistic view of the evidence. That is not this case. There was an ample basis in the evidence for the trial judge to find guilt on the first three incidents testified to by the complainant, but find that on all the evidence the timeline of events raised a reasonable doubt about whether the fourth incident occurred.

[3] Moreover, there was enough evidence about the appellant’s assaultive behaviour over the entirety of these incidents and evidence of choking in relation to a fifth incident, to permit the conclusion that, apart from the fourth incident, at some point in this entire episode, the appellant choked the complainant in relation to a sexual assault.

[4] Second, the appellant argues that the trial judge applied a stricter standard of scrutiny to the appellant’s evidence than to the evidence of the complainant. As Mr. Di Luca very fairly acknowledges, this is not an easy argument to make successfully, and in our view cannot be done in this case. The trial judge gave careful scrutiny to the evidence of both the complainant and the appellant. She found some inconsistencies in both. It was up to her to determine their significance. Moreover, she was entitled to determine what weight to give the various aspects of the evidence of each of them. We see no basis to say that she erred in doing so. She had ample basis on the record to make the credibility findings that she did.

[5] The appeal from conviction must therefore be dismissed.