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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Shahbaz, 2016 ONCA 636

DATE: 20160819

DOCKET: C59065

Doherty, van Rensburg and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Shahbaz

Appellant

Gregory Lafontaine, for the appellant

Brock Jones, for the respondent

Heard and released orally: August 16, 2016

On appeal from the conviction entered by Justice E.R. Tzimas of the Superior Court of Justice, dated November 14, 2013.

ENDORSEMENT

[1] The appellant was convicted of sexual assault. He had sexual intercourse with the complainant when on any view the evidence she was very drunk. The appellant testified that the complainant consented to sexual intercourse. The complainant had no recollection of having had sex with the appellant.

[2] The trial proceeded before a judge sitting without a jury. The outcome turned entirely on the trial judge’s credibility assessments made in the context of the Crown’s burden to prove the charge beyond a reasonable doubt.

[3] The trial judge’s reasons reveal a detailed and careful consideration of the totality of the evidence and the various arguments advanced by the defence. The trial judge was clearly alive to the burden of proof on the Crown and the arguments made by counsel.

[4] The appellant testified through an interpreter. There is no issue as to the competence of the interpreter. However, counsel submits that the trial judge failed to take the fact that the appellant was testifying through an interpreter into account in assessing the appellant’s credibility. Counsel focuses on two aspects of the trial judge’s reasons.

[5] First, counsel submits that the trial judge should not have given significant weight to an admission made by the appellant during his cross-examination. Counsel argues that the question eliciting the admission was confusing and unclear. He also argues that the appellant’s response was entirely inconsistent with the rest of the appellant’s evidence demonstrating that the appellant must have been confused by the question.

[6] We disagree. The question was not confusing on its face. No issue was raised at trial about the adequacy of the interpretation as it related to the exchange in issue. We cannot assume that the appellant was confused simply because he gave a significantly incriminating response through an interpreter. We also note that this exchange was not the only incriminatory aspect of the appellant’s evidence.

[7] The appellant’s “admission” referred to above was far from the only reason the trial judge gave for rejecting the appellant’s evidence. His evidence was replete with inconsistencies and the trial judge highlighted many of these.

[8] In addition to thoroughly addressing the appellant’s evidence, the trial judge also explained at length her reasons for accepting the complainant’s evidence. Her evidence was confirmed in material respects.

[9] Counsel also argues that the trial judge improperly found that the appellant was “feigning” confusion when he attempted to resile from the admission referred to above. First of all, we understand the trial judge’s reference to the appellant “feigning” confusion to be a reference to the entirety of the appellant’s evidence and not a single answer (see para. 133 of the trial judge’s reasons). As trial counsel expressly acknowledged to the trial judge in his submissions, it was for the trial judge to determine whether the appellant’s apparent confusion at times during his cross-examination was feigned or otherwise. There is no basis upon which we can interfere with the trial judge’s assessment.

[10] The appeal is dismissed.

“Doherty J.A.”

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”