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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-03-13

Docket: C61928

Panel: Watt, Brown and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

B-D.N. Appellant

Counsel: Soloman Friedman, for the appellant Nancy Dennison, for the respondent

Heard and released orally: February 22, 2018

On appeal from: the conviction entered on October 29, 2015 and the sentence imposed on March 11, 2016 by Justice Charles T. Hackland of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] After a trial before a judge of the Superior Court of Justice, sitting without a jury, the appellant was found guilty of counts of sexual assault, sexual assault with a weapon, assault with a weapon and unlawful confinement.

[2] The trial judge, invoking the principles in Kienapple v. The Queen, [1995] 1 S.C.R. 725, stayed the convictions of sexual assault and assault with a weapon and entered convictions for sexual assault with a weapon and unlawful confinement.

[3] The appellant appeals his convictions. He advances three grounds of appeal. He says that the trial judge erred:

i. by misapprehending various aspects of the evidence introduced at trial;

ii. by intervening in the proceedings to such an extent and in such a manner that it deprived the appellant of a trial that was and appeared fair; and

iii. by applying a higher standard of scrutiny to the evidence of the appellant than he applied to that of the complainant.

[4] In our view, this appeal fails.

Misapprehension of Evidence

[5] To take first, the submission that the trial judge misapprehended the evidence.

[6] As we understand this submission, at least as framed in his factum, the appellant says that the trial judge misapprehended the evidence about:

i. whether the marital relationship was over by the date of the offence;

ii. whether the appellant sought the complainant's consent to the conduct that constituted the offences of which he was convicted; and

iii. the elements of the sexual encounter itself.

[7] We are not persuaded that the trial judge misapprehended the evidence in concluding that the marital relationship was effectively over on the date of the offences.

[8] The complainant had made it clear that she wanted a divorce a week before the date of the offences, although she acknowledged that reconciliation efforts had occurred earlier that same month. The appellant's true complaint, as it seems to us, is not that the trial judge misapprehended this evidence, but rather that he preferred the evidence of the complainant to that of the appellant. The trial judge was entitled to do so and his decision in that respect is entitled to deference on review in this court.

[9] Second, we are satisfied that the trial judge did not misapprehend the evidence in concluding that the appellant never sought the complainant's agreement to have sex, at least in the sense of not having directly asked her that question.

[10] The appellant never did directly ask the complainant whether she agreed to have sex with him, rather, he simply inferred her consent from her body language and conduct and from her failure to respond to his comment "make peace, make love". The trial judge adverted to this evidence and submission and rejected it as he was entitled to do.

[11] Third, the trial judge did not misapprehend the evidence that the appellant admitted that he never asked the complainant whether he could whip her with a leather belt.

[12] The appellant's evidence was that he whipped the complainant after she said "spank me". We are unable to tease out of this record any material misapprehension of the evidence on this issue. What emerged clearly, as the trial judge found, was that there was no evidence that the appellant asked the complainant if he could whip her with a leather belt on this occasion. That he did so without her voluntary agreement to this aspect of the sexual activity was sufficient to vitiate consent.

Judicial Intervention

[13] We acknowledge that the trial judge intervened on several occasions during the course of this trial. The reasons varied. But at bottom, this is not an exercise about the number of interventions. Taken cumulatively, we are satisfied that no case can be made out that these interventions deprived the appellant of a fair trial, compromised his right to make full answer and defence, or prevented his counsel from presenting and advancing the defence case through cross-examination or the introduction of evidence. Taken cumulatively and viewed through the eyes of a reasonable observer, present throughout the trial, we are not satisfied that the link between the interventions and the factual findings of the trial judge, which the appellant seeks to make, can be made out.

Uneven Scrutiny of Evidence

[14] As for the argument about uneven scrutiny, it is rooted, as are many of similar kind, in the following path of reasoning. The trial judge believed the complainant, despite inconsistencies or frailties in her evidence. The trial judge did not believe the appellant, despite inconsistencies or frailties in his evidence. Therefore, the trial judge erred in applying an uneven standard of scrutiny to the evidence. As this court has said on many other occasions, this argument moves in a circle. It fails as matter of logic. The conclusion does not follow from the premises. And it fails here, not only as a matter of logic, but also on a review of the trial judge's reasons considered as a whole.

Disposition

[15] The appeal from conviction is dismissed.

[16] The appellant also sought leave to appeal sentence. He made no submissions on that issue. Leave to appeal sentence is refused.

"David Watt J.A." "David Brown J.A." "Grant Huscroft J.A."