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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-11-23

Docket: C62844

Panel: Watt, Hourigan and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Benjamin John Johnson Appellant

Counsel

Alexander Ostroff, for the appellant

Rebecca DeFilippis, for the respondent

Heard and Released

Heard and released orally: November 21, 2017

On appeal from the conviction entered on September 1, 2016 by Justice Kirk W. Munroe of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals his conviction of sexual assault entered by a trial judge at the conclusion of a trial without a jury. The argument advanced in this court is that conviction is unreasonable and founded on misapprehensions of the evidence adduced at trial.

[2] The trial judge provided lengthy and thoughtful reasons for judgment. He found that the complainant, by virtue of her intoxication, lacked the capacity to consent to the sexual activity in issue.

[3] He rejected, as unworthy of belief, the appellant's testimony that the complainant was "fine" and had initiated some sexual conduct.

[4] The appellant denied having had sexual intercourse with the complainant, as she testified. In this respect, his evidence was contradicted by forensic evidence.

[5] In claiming that a verdict is unreasonable, an appellant must demonstrate that the verdict is one that no trier of fact could reasonably have rendered in the circumstances, or that the trial judge made findings of fact or drew inferences that were plainly contradicted by the evidence relied upon to ground the finding, or that are incompatible with evidence that had not been contradicted or rejected.

[6] In our view, there was ample evidence upon which the trial judge could conclude that the Crown had proven the essential elements of the offence charged beyond a reasonable doubt, in particular, that the complainant lacked the capacity to consent to the sexual activity in issue. Nor are we at all persuaded that the trial judge misapprehended any evidence that was material to his conclusion, that the appellant's guilt had been proven beyond a reasonable doubt.

[7] The appeal is dismissed.

"David Watt J.A." "C.W. Hourigan J.A." "B.W. Miller J.A."