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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-12-07

Docket: C61874

Panel: Laskin and Pepall JJ.A. and Gans J. (ad hoc)

Between

Her Majesty the Queen Respondent

and

Stefano Damassia Appellant

Counsel:

• Mark Halfyard and Breana Vandebeek, for the appellant
• Mabel Lai, for the respondent

Heard and released orally: November 29, 2017

On appeal from: The conviction entered on July 31, 2015 by Justice Fletcher Dawson of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant raises three grounds of appeal from his conviction for sexual assault. We called on the Crown only on the first ground.

[2] The appellant submits that the trial judge erred by failing to find a breach of s. 10(b) of the Charter. He contends that in advising him of his s. 10(b) rights the police officer did not tell him that he had a right to consult counsel in private. He concedes that under our current law s. 10(b) does not impose a free-standing obligation on the police to give this advice to a person who is detained. But relying on this court's judgment in R. v. Jackson (1993), 86 CCC (3d) 233 (Ont. C.A.) at 241, he says the obligation arises where detained persons do not fully understand their rights. The appellant says that he was not fully aware of his s. 10(b) rights and the officer's advice fell short of what was required.

[3] We do not agree with appellant's submission. The trial judge was well aware that the informational component of s. 10(b) required the officer to make sure the appellant fully understood his right to counsel. And, as the trial judge found, the officer went to some length to ensure that the appellant understood his rights. The appellant then made an informed decision to speak to the police without a lawyer. The trial judge expressly found at para. 33 of his ruling that the appellant knew his rights, and the trial judge rejected the appellant's assertion he did not appreciate he had a right to consult counsel in private. This ground of appeal fails.

[4] We deal briefly with the other two grounds of appeal. On the second ground, we accept that the trial judge misstated the evidence when he said the complainant was not tested for the presence of any of the common date rape drugs. The statement of facts agreed to by the parties stipulated that the complainant's blood and urine were sent for analysis the day after the party, and the analysis showed "no positive findings for the presence of drugs."

[5] But there simply was no evidence whether she was tested for drugs or, if she was, what drugs she was tested for. The misstatement, however, was immaterial. The trial judge was concerned with the complainant's state of intoxication not with what caused it. And he found the evidence was overwhelming that the complainant was so intoxicated she lacked the capacity to consent.

[6] On the third ground, the appellant argues that one of the reasons for the trial judge's adverse credibility finding was illogical. The trial judge found that the appellant fabricated his evidence about drinking one third of a bottle of Jägermeister to explain his intoxication after he had sex with the complainant. We think this finding was open to the trial judge. But, even if it was not, the trial judge had other unimpeachable reasons to reject the appellant's evidence.

[7] The appeal is therefore dismissed.

"John Laskin J.A."

"S.E. Pepall J.A."

"Arthur Gans J."