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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

486.4(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.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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

Date: 2017-09-05

Docket: C58238

Judges: Watt, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Kenneth Prohaska Appellant

Counsel:

• Frank Miller, for the appellant
• Rebecca De Filippis, for the respondent

Heard and released orally: August 28, 2017

On appeal from: the conviction entered on August 9, 2013 by Justice Patricia C. Hennessy of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] Introduction

The appellant was convicted of assault after a trial before a judge sitting without a jury on charges of sexual assault and sexual interference. The conduct alleged took place in a stall in a public washroom at a campground. The complainant was three years old and a stranger to the appellant.

The Background Facts

[2] The circumstances of the alleged offence fall within a narrow compass and are largely uncontested.

[3] The complainant and an older sibling walked to the public washroom at a campground where their family was staying. As the complainant approached one side of the entrance, the appellant arrived at the same time and opened the door to the washroom. The appellant and complainant entered the washroom at the same time. Shortly thereafter, the appellant entered the washroom stall where the complainant was standing, his one-piece sleeper down around his ankles. Without any request from the complainant for assistance, the appellant, who had not knocked on the stall door, reached down and pulled the complainant's sleepers up, making contact with the complainant's buttocks as he did so.

[4] In his interview by investigators and his testimony at trial, the appellant denied any suggestion that his contact with the complainant was motivated by any sexual interest or sexual purpose.

The Grounds of Appeal

[5] On his appeal from conviction, the appellant contends that the trial judge erred:

i. in failing to apply an objective test to the appellant's conduct, thereby failing to decide whether the conduct was within the class of conduct generally acceptable in the ordinary conduct of daily life; and

ii. in failing to apply the criminal standard to the issues of whether the conduct fell within the class of ordinarily acceptable conduct and whether the appellant was acting unreasonably.

Discussion

[6] We do not give effect to either ground of appeal advanced by the appellant.

[7] As we apprehend the argument advanced, it is that the statutory definition of assault is not exhaustive of what the Crown must prove to establish guilt of that offence. The appellant would add to the requirements that a touching be intentional and non-consensual, that it must also be socially unacceptable conduct.

[8] We are unable to construe the definition of assault in s. 265(1)(a) of the Criminal Code in this way. It is unsupported by authority and at odds with the applicable principles of statutory construction.

[9] In the result, the appeal is dismissed.

David Watt J.A.

Grant Huscroft J.A.

G.T. Trotter J.A.