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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-11-01

Docket: C64316

Panel: MacPherson, Miller and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

J.P. Appellant

Counsel:

• Janelle Belton, for the appellant
• Rebecca Schwartz, for the respondent

Heard: October 30, 2018

On appeal from: The judgment of Justice Paul Robertson of the Ontario Court of Justice, dated May 3, 2017.

Reasons for Decision

[1] The appellant appeals against his conviction on two counts of sexual assault against his step-granddaughter. The complainant visited the appellant at his apartment to assist him with household chores. She visited him weekly at first, then less frequently, from the time she was 18 until she was 27. The trial judge found that the appellant sexually assaulted the complainant on these visits during this time period, and that these assaults were part of an on-going course of conduct.

[2] The trial judge found that the complainant acquiesced to the appellant's demands out of fear, and therefore did not consent. Eventually, the complainant refused the appellant and went to the police. The trial judge characterized the complainant as "simple," "naïve," and "below normal development of a person of the same age."

[3] The appellant raised two grounds of appeal, arguing that the trial judge erred by:

(1) reversing the burden of proof by drawing a negative inference from the appellant not having provided medical evidence of his physical inability to engage in sex; and

(2) failing to apply the third step from R. v. W.(D), [1991] 1 S.C.R. 742.

[4] We would not give effect to either of these grounds of appeal.

[5] First, the trial judge did not reverse the burden of proof. Whether the appellant's evidence was that he was incapable of engaging in sexual intercourse (as maintained by his trial counsel) or only that intercourse would have been physically difficult for him (as characterized by his counsel in this court), the basis of the finding that the appellant was capable of engaging in sexual intercourse was not the appellant's failure to provide medical evidence to the contrary. The trial judge did comment on the absence of medical evidence that would have corroborated the appellant's claim. However, when the trial judge's reasons are taken as a whole, it is clear that he rejected the appellant's evidence because he accepted, beyond a reasonable doubt, the conflicting evidence from the complainant and her mother.

[6] Second, although the trial judge did not specifically enunciate the test from W.(D), he was not obliged to do so, and he nevertheless observed its requirements. He did not approach the case as a credibility contest between the appellant and the complainant, but expressly articulated the need to consider all of the evidence which he accepted. With respect to the question of whether the complainant consented, for example, he held that "[w]hile the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed in light of all of the evidence including any ambiguous conduct."

[7] Neither did the trial judge fail to reconcile material inconsistencies in the evidence. The trial judge addressed the key arguments raised by the parties. All witnesses agreed that the appellant suffered from breathing issues and other ailments. That was the reason that the complainant assisted him with household tasks at his apartment. Disagreement as to the precise extent of the appellant's breathing issues was not material. It was unnecessary that the trial judge do more to resolve these more peripheral questions because he accepted evidence that the appellant's health was not, at the relevant times, so impaired as to prevent him from engaging in the sexual acts alleged.

Disposition

[8] The appeal is dismissed.

"J.C. MacPherson J.A."

"B.W. Miller J.A."

"David M. Paciocco J.A."