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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8; 2010, c. 3, s. 5; 2012, c. 1, s. 29.

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. Dinardo, 2014 ONCA 758

DATE: 20141031

DOCKET: C57531

Sharpe, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Enrico Dinardo

Appellant

Frank Addario and Rebecca McConchie, for the appellant

Robin Flumerfelt, for the respondent

Heard and released orally: October 23, 2014

On appeal from the conviction entered on May 31, 2013 by Justice Timothy A. Culver of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his sexual assault conviction submitting that his actions, as found by the trial judge, did not constitute a sexual assault.

[2] The circumstances surrounding the charge may be summarized as follows. The appellant is a chiropractor and the complainant was his patient. During the course of a treatment, the appellant massaged the complainant’s back by applying a massage tool with his left hand, while surreptitiously masturbating with his right hand. The complainant noticed a wet spot on her pants after the treatment was finished. Testing later confirmed the presence of the appellant’s semen on the complainant’s pants.

[3] After citing the relevant passage from R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293, the trial judge found:

On all the evidence, I find the complainant consented to a professional chiropractic massage. She did not consent to a massage being used for a sexual purpose by the accused, mainly his sexual arousal by her presence and masturbation during her treatment. On all the evidence, I find the accused either by design or happenstance became sexually aroused during a chiropractic treatment of the complainant, surreptitiously, manipulated his penis and masturbated either directly on the complainant or on the treatment table. I find that after his arousal, during masturbation, he maintained contact with her in order to deceive her or prevent her from discovering what he was doing for his own sexual gratification. She did not, I find, consent any of this.

[4] The appellant contends that his conduct does not constitute sexual assault because sexual assault requires touching in a sexual context. He argues that the contact he maintained with the complainant with his left hand was nonsexual contact intended to prevent her from discovering what he was doing with his other hand. The appellant also submits that the touching with the massage tool was purely therapeutic and therefore consensual. He further argues that there is no specific finding by the trial judge that the complainant’s sexual integrity was violated.

[5] In our view, there is no merit to the appellant’s position. A reasonable observer, considering all the circumstances, would find that the contact was sexual in nature and that the complainant’s sexual integrity had been violated. We are also of the view that the complainant did not consent to being touched in a sexual manner.

[6] The appeal is, therefore, dismissed.

[7] The appellant surrendered into custody as required by his bail. As he was sentenced to an intermittent sentence, para. 1 of the bail order must be struck out and the appellant should be released from Hamilton Wentworth Detention Centre so he can commence serving his intermittent sentence.

“Robert J. Sharpe J.A.”

“C. William Hourigan J.A.”

“G. Pardu J.A.”```