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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-09-10

Docket: C63688

Panel: MacPherson, Huscroft and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

A.R. Appellant

Counsel

For the Appellant: Brian H. Greenspan and Michelle M. Biddulph

For the Respondent: Katie Doherty

Heard: September 6, 2018

On appeal from: The conviction entered on February 27, 2017 and the sentence imposed on May 12, 2017 by Justice Jennifer Woollcombe of the Superior Court of Justice.

Reasons for Decision

Overview

[1] The appellant A.R. was convicted of six counts of sexual assault, two counts of uttering threats, and two counts of assault. The appellant received a global sentence of four years for these offences. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide those reasons.

[2] The various charges arose from allegations of domestic violence committed by the appellant against his wife (now ex-wife) L.R. between 2011 and 2013. The trial lasted seven days and involved three witnesses.

Trial Evidence

[3] The Crown called L.R. and L.R.'s mother, who testified about the various allegations. Hundreds of text messages exchanged between the appellant and the complainant during the relevant time frame were introduced. Two police occurrence reports were also introduced on consent.

[4] The appellant did not testify. He called one witness, his cousin F.D., who gave evidence about an evening meeting involving A.R., L.R. and A.R.'s parents that post-dated the time frame of the events giving rise to the charges.

[5] The appellant does not challenge his convictions on the two counts of uttering threats. He appeals the convictions on the eight counts of sexual assault and assault. He also appeals his sentence. However, he concedes that, if the conviction appeal is dismissed, then his sentence should also be dismissed.

Conviction Appeal

Grounds of Appeal

[6] On the conviction appeal, the appellant, especially in oral submissions, advanced two principal grounds of appeal.

[7] First, the appellant contends that the trial judge erred by failing to properly scrutinize the complainant's evidence. He makes two submissions on this issue.

First Ground: Scrutiny of Complainant's Evidence

[8] The appellant submits that the trial judge failed to recognize the true extent of the complainant's evasiveness in her testimony. He says that L.R.'s evasiveness extended beyond questions about the alleged sexual assaults to encompass any questions that potentially painted her in a negative light.

[9] We are not persuaded by this submission. The trial judge was alive to the need to carefully assess the credibility and reliability of the complainant's evidence. She was not uncritical of the complainant's testimony. For example, she said:

I agree with defence counsel that L.R.'s perspective about the fighting between her and the accused seems to be that everything was his fault and that she was blameless. I agree that in the text messages she berated the accused, often repeating the same issues over and over. In her evidence, she did not seem to take any responsibility for the fights.

I take from this that the complainant lacked insight into the extent of the marital issues that they were having and that her perspectives were not always, when viewed objectively, fair or correct. However, this does not lead me to reject her evidence. Rather, it reinforces for me the need to approach her evidence with particular care.

[10] Against the backdrop of this caution, the trial judge was entitled to find that L.R.'s account of the various incidents giving rise to the ten counts in the indictment was believable. On each count, the trial judge gave reasons for accepting the complainant's testimony. We do not fault her analysis or conclusions on the various counts.

Police Occurrence Report

[11] On this issue, the appellant also asserts that the trial judge erred by not addressing a police occurrence report dated January 5, 2014 which, the appellant says, sharply contradicts the testimony of both the complainant and her mother about what they said to police that day.

[12] We do not accept this submission. The police occurrence report did not relate to any of the 10 counts in the indictment; rather, it involved an incident several months after the events relating to the last count in the indictment. Moreover, any discrepancies between L.R.'s testimony and the police officer's report about their meeting on that date are, in our view, slight and trivial.

Second Ground: Differential Standards of Scrutiny

[13] Second, the appellant submits that the trial judge applied different standards of scrutiny to the testimony of the complainant and her mother, the Crown witnesses, and F.D., the defence witness.

[14] We disagree. F.D. was not a witness who testified about any of the 10 incidents giving rise to the various criminal charges. He was not present at any of them. Rather, he testified about a family meeting that is almost entirely peripheral to those charges. Even if we were to accept that the trial judge unfairly rejected his evidence, it would not have any impact on the central issues that the trial judge had to resolve.

Sentence Appeal

[15] In light of our disposition of the conviction appeal, the sentence appeal does not arise.

Disposition

[16] The appeal is dismissed.

J.C. MacPherson J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.