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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 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; 2005, c. 43, s. 8(3)(b).

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. J.F., 2016 ONCA 900

DATE: 20161129

DOCKET: C60981

LaForme, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.F.

Appellant

Alan Risen, for the appellant

Dena Bonnet, for the respondent

Heard: November 23, 2016

On appeal from the conviction entered on May 15, 2015 by Justice Clayton John Conlan of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The trial judge convicted the appellant of one count of sexual assault and sentenced him to 18 months’ incarceration. The sole issue at trial was consent; the appellant did not testify. He appeals his conviction and argues that the trial judge made numerous errors in reaching his decision. We reject each of the appellant’s alleged errors.

[2] First, the trial judge did not reverse the burden of proof on the central issue of consent. He correctly recited the Crown’s burden of proof several times in his reasons and was acutely aware of the legal presumption of the appellant’s innocence. He specifically addressed the complainant’s “flashback” evidence and rejected it as reliable evidence that she was awake, correctly in our view. He considered and weighed that evidence in light of the case as a whole and did not improperly shift the burden of proof onto the defence.

[3] Second, we do not agree that the trial judge failed to appreciate or adequately scrutinize the complainant’s evidence. He did precisely that and concluded that any inconsistencies were inconsequential. The question was whether or not the complainant was asleep at the relevant time and therefore did not consent to sex. The discrepancies raised by the appellant are of no assistance in that regard; the trial judge’s credibility assessment was entirely reasonable.

[4] Third, the trial judge took the correct approach to assessing the remorse contained in the appellant’s statement to the police and letter of apology. He considered this evidence in connection with the rest of the evidence taken as a whole, as he should have. At para. 78 of his reasons, he properly concluded:

By itself, the statement of [the appellant] could not amount to proof beyond a reasonable doubt. It is simply one piece of the puzzle. To the extent that it is reliable, elaborated upon and qualified above, it is incriminating.

[5] The appellant has not demonstrated any palpable and overriding error.

[6] Finally, the verdict is not unreasonable. The complainant recalled all significant details of the evening up until she went to sleep. Upon awaking in the morning she immediately knew someone had had sex with her. The trial judge expressly followed this court’s decision in R. v. Garciacruz, 2015 ONCA 27, 320 C.C.C. (3d) 414, and gave reasons for why an explanation other than her having been asleep was not reasonable. Paragraphs 91 and 92 of the trial judge’s reasons capture the essence of this case:

… Put bluntly, aside from the fact that I find [the complainant] to have been a generally credible and reliable witness, there is no evidence to the contrary (aside from, perhaps, the flashbacks which I have already indicated cannot be relied upon).

That statement is not meant to suggest that the defence has any burden of proof, however, when the evidence from a credible and reliable witness is that she does not remember the sexual encounter because she was asleep, in the absence of anything that suggests otherwise, it is virtually inevitable that a finding of fact will be made that the complainant was asleep during the sex.

[7] The grounds of appeal all constitute attacks on the trial judge’s findings of fact, to which this court owes deference. The appellant has not demonstrated that the trial judge made any palpable and overriding error, so the appeal must be dismissed.

“H.S. LaForme J.A.”

"Paul Rouleau J.A."

"David Brown J.A."