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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Djuraev, 2016 ONCA 765

DATE: 20161019

DOCKET: C57168

Doherty, Hourigan and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ravshan Djuraev

Appellant

Najma Jamaldin, for the appellant

Nadia Thomas, for the respondent

Heard and released orally: October 5, 2016

On appeal from the conviction entered on December 18, 2012 and the sentence imposed on May 13, 2013 by Justice Petra E. Newton of the Ontario Court of Justice.

ENDORSEMENT

The Conviction Appeal

[1] There are several grounds of appeal arising from the trial record. Counsel also brings a fresh evidence application alleging that trial counsel provided ineffective assistance. We will deal first with the grounds of appeal arising from the trial record.

[2] There was ample evidence upon which the trial judge could find that the injuries inflicted on the victim by appellant amounted to bodily harm as defined in the Criminal Code. The pictures speak for themselves. The point was conceded, in our view properly, at trial.

[3] The trial judge considered the defence claim that the appellant had an honest belief that the victim was consenting to the sexual activity. While there was perhaps some basis in the evidence for that position, the trial judge rejected the claim in light of the findings of fact she made. Those findings included the following:

• The victim repeatedly said “no” to the appellant during the sexual activity;

• The victim physically resisted the activity;

• The appellant used force to both restrain and demobilize the victim during the activity;

• The appellant inflicted significant injuries on the victim during the activity.

[4] There was no misapprehension of the evidence by the trial judge. On the view of the evidence she took, those findings of fact were open to her. Based on those findings of fact, there was indeed “no air of reality” to the defence of honest belief and consent. The trial judge’s use of the phrase “no air of reality”, a term more commonly used in a jury trial context, was simply an indication by the trial judge that based on her factual findings, there was no merit to the claim of an honest belief and consent.

[5] The trial judge also made a finding that the victim did not consent to the sexual activity. Once again she outlined the findings of fact on which she based that conclusion. Those findings reveal no misapprehension of the evidence and were open to her.

[6] Having found that the victim did not consent to the application of force and that the appellant did not have an honest belief in consent, it was not relevant whether the appellant intended to cause bodily harm. An intention to cause bodily harm is not an element of the offence of sexual assault causing bodily harm. The intention to cause bodily harm coupled with the actual causing of bodily harm may vitiate or negate a victim’s consent to the application of force. Where, as found in this case, there was no consent to the application of force, there was no need to consider whether consent was somehow vitiated: see R. v. Nelson, 2014 ONCA 853 at para. 25.

[7] Turning to grounds of appeal based on the allegation that trial counsel did not provide effective assistance to the appellant, we have considered the appellant’s affidavit and his cross-examination as well as trial counsel’s affidavit and cross-examination.

[8] We are not here to grade trial counsel’s performance. We also do not readily accept allegations made by convicted accused that they did not receive adequate assistance from their lawyers. Those kinds of allegations are very easy to make and because of the nature of the relationship between an accused and his trial lawyer, difficult for trial counsel to refute.

[9] In our view, the appellant’s affidavit and his cross-examination reveal that he is not credible insofar as he purports to describe what went on between himself and his trial lawyer. Many of the appellant’s answers during this cross-examination were confusing and contradictory. We decline to act on his version of events.

[10] Most of the arguments alleging ineffective assistance depend on the acceptance of his evidence. Those few that do not, have no merit.

[11] The appellant has not satisfied us that a miscarriage of justice occurred as a result of the ineffective assistance provided by his counsel.

[12] The conviction appeal is dismissed.

Sentence Appeal

[13] The trial judge’s reasons for sentence demonstrate a careful consideration of the facts relevant to both the offence and the offender. We agree that her determination that the circumstances of the offence, an attempted rape, required a significant period of incarceration in a reformatory despite the many positive things about the appellant. We defer to her determination that 13 months was the appropriate sentence.

[14] Leave to appeal sentence is granted but the appeal is dismissed.

“Doherty J.A.”

“C.W. Hourigan J.A.”

“L.B. Roberts J.A.”