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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-11-26

Docket: C61816

Panel: Paciocco, Fairburn and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

B.C. Appellant

Counsel: Margaret Bojanowska, for the appellant Holly Loubert, for the respondent

Heard and released orally: November 22, 2018

On appeal from: the conviction entered on July 16, 2014 by Justice Robert Kelly of the Ontario Court of Justice.

Reasons for Decision

[1] B.C. was convicted of the brutal sexual assault of a young woman he had been having a sexual relationship with, after they had a falling out. He was also convicted of unlawful confinement, obstructing a peace officer and breach of recognizance related to the same event. He appeals against his convictions of sexual assault and unlawful confinement. The complainant said she did not consent to what happened. B.C. said she had. Despite difficulties with the complainant's evidence, the trial judge found the complainant to be credible and reliable. He found that B.C. was not credible and reliable, and that his evidence was incapable of raising a reasonable doubt.

[2] B.C. raises numerous grounds in appealing his conviction. We accept none of those grounds, which can be conveniently addressed in the following order.

[3] The trial judge did not take improper judicial notice in rejecting the defence theory that the complainant had concocted her evidence. He simply applied common sense.

[4] The trial judge did not err by failing to discuss in his decision the testimony of the sexual assault nurse. We agree with the Crown. That evidence was incapable of compromising the testimony of the complainant.

[5] Nor did the trial judge err by not addressing all of the contradictions in the complainant's evidence. The trial judge, under no obligation to address all of the evidence, offered a thorough decision that dealt extensively with those concerns that were material.

[6] The trial judge did not err in finding support for the complainant's testimony in a photograph of her taken during the event. Given her posture in the photograph, he was entitled to accept that it was consistent with her narrative and not B.C.'s.

[7] The appellant's suggestion that the trial judge gave uneven scrutiny to the evidence is unpersuasive. B.C.'s evidence was not rejected because of a harsher evaluation of its consistency than was applied to the complainant's evidence. His evidence was found to be implausible and contradicted by the physical evidence relating to the straps and the photographs, yet hers was supported.

[8] The legal representation B.C. received at trial was not ineffective. His counsel made a tactical decision not to use the evidence that B.C. relies upon to demonstrate ineffectiveness. Counsel's conduct fell within the ambit of reasonable professional assistance. There is no miscarriage of justice or unfairness resulting.

[9] We do not accept that the trial judge's reliance on the details provided in the complainant's evidence was an error. Just as it is permissible for a judge to doubt a bare assertion, the trial judge was entitled to consider the coherence and content of the narrative in deciding whether to believe it.

[10] Even though the trial judge erred by relying on the accused's voir dire testimony to illustrate that he scripted his trial testimony, the trial judge gave other poignant examples of this. The error could not have affected the outcome in light of the evidence as a whole and the trial judge's caution to himself on the limited effect he was to give demeanour evidence.

[11] We therefore dismiss the appeal.

"David M. Paciocco J.A."

"Fairburn J.A."

"B. Zarnett J.A."