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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Beilhartz, 2014 ONCA 760 Date: 2014-10-31 Docket: C57878

Before: Sharpe, van Rensburg and Pardu JJ.A.

Between

Her Majesty the Queen Appellant

and

Dennis Beilhartz Respondent

Counsel: Amanda Rubaszek, for the appellant Eric D. McCooeye, for the respondent

Heard and released orally: October 20, 2014

On appeal from the acquittal entered by Justice Edward E. Gareau of the Superior Court of Justice, sitting with a jury, on October 11, 2013.

Endorsement

[1] This is a Crown appeal from a jury verdict of acquittal on a charge of sexual assault.

[2] The Crown argues that there were three errors the cumulative effect of which is of sufficient gravity to meet the Vezeau test to require a new trial.

[3] The first two alleged errors relate to evidentiary rulings.

[4] The Crown sought to introduce evidence as to the respondent’s sexual fantasies in relation to the complainant.

[5] The trial judge gave full reasons explaining that, although the evidence was relevant, its prejudicial effect outweighed its probative value, because its introduction would likely reveal the fact that the appellant was being examined by doctors in relation to a child protection proceeding.

[6] We cannot say that the trial judge’s assessment of that issue was unreasonable, and accordingly would not give effect to that ground of appeal.

[7] Nor do we see grounds for interfering with the trial judge’s ruling that the respondent was entitled to cross-examine the complainant with respect to two prior incidents of sexual activity pursuant to section 276(2) of the Criminal Code in support of his defence of honest but mistaken belief in consent.

[8] The trial judge referred to and applied the governing statutory language as elaborated by this Court in R. v. Harris(1997), 1997 6317 (ON CA), 118 C.C.C. (3d) 498 and concluded that the evidence was relevant and that it had significant probative value not outweighed by the danger of prejudice to the proper administration of justice. We see no error of law or principle that would permit appellate interference, and accordingly, we reject that ground of appeal.

[9] The third ground of appeal relates to the trial judge’s charge with respect to section 273.2, and the requirement that where an accused raises mistaken belief in consent, the onus is on the Crown to prove that he failed to take reasonable steps to ascertain consent.

[10] The trial judge included in his charge the very words suggested by the trial Crown at the pre-charge conference. That language was legally correct, and there was no objection taken by the trial Crown to the point that is now raised on appeal as to the overall adequacy of the instruction on this issue. We are not prepared to give effect to this ground of appeal.

[11] Accordingly the appeal is dismissed.

"Robert J. Sharpe J.A." "K. van Rensburg J.A." "G. Pardu J.A."