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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

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

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. Edgar, 2016 ONCA 120

DATE: 20160211

DOCKET: C58012

Feldman, Cronk and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Edgar

Appellant

Constance Baran-Gerez, for the appellant

Andreea Baiasu, for the respondent

Heard: January 14, 2016

On appeal from the convictions entered on May 9, 2013 and the sentence imposed on October 6, 2014 by Justice K. Pedlar of the Superior Court of Justice, sitting without a jury.

L.B. Roberts J.A.:

Overview

[1] The appellant pleaded guilty to the offences of dangerous driving, flight from police, breaking and entering and forcible confinement. He was found guilty of the offence of sexual assault, to which he did not plead guilty. He appeals only from that conviction. If his conviction appeal is allowed, he seeks leave to appeal his sentence on all his convictions.

[2] The appellant argues on the conviction appeal that the trial judge erred in finding him guilty of sexual assault because there was no overt interference with the complainant’s sexual or bodily integrity. The Crown submits that the totality of the appellant’s actions created a violent and sexualized atmosphere that gave rise to a threat of sexual assault against the complainant.

[3] For the reasons that follow, I agree with the Crown’s submission. Accordingly, I would dismiss the appeal.

Surrounding circumstances

[4] The appellant’s trial proceeded on the basis of an uncontested statement of fact, which can be summarized briefly.

[5] On November 8, 2011, the appellant accosted the complainant, a stranger, outside her apartment door. He forced his way into the complainant’s apartment by using a chokehold around her neck. He ordered her, “Don’t f’n scream, open your door, I need to use your phone.” Once inside, he released her and locked the door. He started telling her about a police chase and drugs. He was red and sweaty. He ranted about his mistreatment by others. He made several telephone calls. When not on the telephone, he was pacing angrily and erratically between the complainant and her front door. She thought he was high on drugs. She was terrified. Other than the balcony, there was no other place for the complainant to go. The complainant sought the appellant’s permission to smoke cigarettes and drink tea on her balcony, which he allowed her to do after she brought him a drink of water.

[6] As the complainant was drinking her second cup of tea on the balcony, the appellant knocked on the balcony door and said to her, “Before I go, we have to have an agreement, but first I need you to come in and watch me masturbate.” The complainant complied and sat down on the couch near the appellant while he masturbated by putting his hands down his pants. He did not expose his penis or touch the complainant. After a few minutes, the appellant asked the complainant when her husband was going to be home. She told him soon. By this time, the appellant had been in the complainant’s apartment for about an hour. The complainant feared that she would be raped or killed. The complainant ran out on the balcony and dove over the rail, falling 12 feet to the ground and breaking both her ankles. She screamed for help and tried to run away.

Analysis

[7] The issue on the conviction appeal is whether the appellant’s action of masturbation, which he forced the complainant to watch in close proximity, amounts to a threat of sexual assault.

[8] The defence submits that the appellant’s act of masturbation does not amount to a threat of sexual assault because the appellant did not touch or move towards the complainant, nor was his act accompanied by any threatening words. The defence concedes that the appellant’s actions in the complainant’s apartment created a terrifying and sexualized atmosphere that understandably terrorized the complainant. However, his isolated act of masturbation cannot amount to a sexual assault because it did not overtly threaten the complainant’s sexual or bodily integrity.

[9] I disagree.

[10] To commit a sexual assault, it was not necessary for the appellant to touch or even verbally threaten the complainant. A person’s act or gesture, without words, force or any physical contact, can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of imminent harm or offensive contact that affronts the person’s sexual integrity. Coupled with a present ability to carry out the threat, this can amount to a sexual assault. See Criminal Code, R.S.C. 1985, c. C-46, ss. 265(1)(b) and (2); R. v. Cadden (1989), 1989 CanLII 2847 (BC CA), 48 C.C.C. (3d) 122 (B.C.C.A.); and R. v. Johnson, 2006 CanLII 37519 (Ont. S.C.).

[11] Defence counsel argues that Cadden and Johnson are distinguishable in that the offences in those cases involved overt acts combined with verbal demands made of the victims, which are absent in the present case: in Cadden, a teacher motioned to young children to come under his desk and then told them to fellate or touch his penis; in Johnson, the offender exposed his penis and, while holding a gun, ordered his victim to fellate him.

[12] I would not give Cadden and Johnson this narrow interpretation.

[13] What elevates the appellant’s act of masturbation from an indecent act to a sexual assault are the surrounding circumstances of sexualized violence, control, and confinement that the appellant created, and to which he deliberately subjected the complainant. Those are the same kind of circumstances that led the courts in Cadden and Johnson to hold that the offenders’ actions constituted sexual assaults: see Cadden, at p. 128; and Johnson, at para. 152.

[14] On the undisputed facts of this case, the appellant was a violent intruder who forcibly confined the complainant to the restricted space of her apartment. Over 6 feet tall and about 300 pounds, the appellant easily overpowered the complainant to force entry into her apartment. His appearance and movements were highly erratic and volatile. For about an hour, he controlled and dictated the complainant’s movements within her own apartment, physically blocking her exit.

[15] Finally, the appellant commanded the complainant to enter into an agreement with him before he would leave her apartment, which included, but was not necessarily limited to, her watching him commit a sexual act in close proximity. The already terrifying atmosphere produced by the appellant was intensified by his asking her when her husband would be home. The complainant was so fearful of being immediately raped or killed that she risked very serious injury by diving over the railing of her apartment balcony to escape from the appellant.

[16] It must be remembered that sexual assault is an act of power, aggression and control, and that a threat to invade the bodily or sexual integrity of another person or to otherwise apply force is itself a hostile act: Cadden, at p. 128. The appellant intentionally terrorized the complainant for a prolonged period, in violent and sexualized circumstances, causing her to reasonably believe that he had the present ability to rape or kill her.

[17] Viewed in the context of the entire circumstances, the appellant’s acts constituted a threat of sexual assault.

Disposition

[18] For these reasons, I would dismiss the conviction appeal. As the appellant’s proposed sentence appeal is predicated on his success on the conviction appeal, I would deny leave to appeal sentence.

Released: February 11, 2016

“L.B. Roberts J.A.”

“I agree K. Feldman J.A.”

“I agree E.A. Cronk J.A.”