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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-11-28

Docket: C60344

Panel: Pepall, Paciocco and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Mohammed Daoud Applicant/Appellant

Counsel: Randall Barrs, for the appellant Jill Witkin, for the respondent

Heard: November 21, 2018

On appeal from: the conviction entered on September 5, 2014 and the sentence imposed on April 15, 2015 by Justice Sheila Ray of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of sexually assaulting the complainant. The prosecution that led to his conviction was based on the theory that the complainant woke up to find the appellant having sex with her. Because she was passed out from intoxication at the time, she was incapable of consenting to the sexual acts that occurred.

[2] The appellant appeals his conviction, arguing that the trial judge erred by failing to consider whether the complainant's lack of memory raised a reasonable doubt that there was either consent, or an honest but mistaken belief in consent.

[3] We dismiss the appeal. The trial judge provided compelling reasons for not believing the appellant's testimony. She then recognized that a witness's belief that something did not happen could be based simply on a lack of memory before making clear that her decision was not based on the complainant's testimony that she did not believe she consented. The trial judge explained that she convicted the appellant because of evidence confirming the complainant's extreme intoxication, testimony that the complainant passed out in a drunk-induced sound sleep upon being put in the bed, and that, in her intoxicated condition it was impossible for her to have consented. Finally, the manner in which the complainant fled the bed confirmed her shock, her surprise and further confirmed her extreme intoxication at the time. Simply put, while the complainant's testimony did not prove beyond a reasonable doubt that she did not wake up and consent, the totality of the evidence did so.

[4] As for the attempt by the appellant to rely on the mistaken belief in consent defence, that defence rested entirely on the rejected testimony of the appellant, and he made damaging admissions that could not get beyond the wilful blindness obstacle. The trial judge's reasons for rejecting this defence are cogent and correct.

[5] The appeal is dismissed.

S.E. Pepall J.A.

David M. Paciocco J.A.

Harvison Young J.A.