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:
Section 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).
Section 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.
Section 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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
Section 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.
Section 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.
Section 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.
Section 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.
Section 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: 2019-04-16
Docket: C63810
Panel: Juriansz, Watt and Harvison Young JJ.A.
Between
Her Majesty the Queen Respondent
and
O.K. Appellant
Counsel
J. Randall Barrs, for the appellant
Sarah Shaikh, for the respondent
Heard and Released
Heard and released orally: April 16, 2019
On appeal from the conviction entered on May 4, 2018 by Justice Todd Ducharme of the Superior Court of Justice.
Reasons for Decision
[1] The appellant appeals his conviction for sexual assault.
[2] In oral argument counsel did not advance the grounds in his factum, but advanced the argument, not in his factum, that the verdict was unreasonable because the appellant had an honest but mistaken belief the complainant consented to the sexual activity. The trial judge rejected this argument when it was advanced at trial. He found the complainant's obvious intoxication vitiated any consent. He found, given the complainant's obvious intoxicated state, the appellant's decision to engage in sexual activity was either reckless or wilfully blind, making honest but mistaken belief not available to him.
[3] The appellant strenuously attacks the finding of fact that the complainant was obviously intoxicated. The finding, however, was open to the trial judge as there was much evidence to support it.
[4] The trial judge added that silence, passivity or ambiguous conduct does not constitute consent to sexual activity. He noted the appellant did not claim that he had asked the complainant for her consent, or that she gave her consent, and that the complainant's turning around in the bathtub in the manner that she described could not be said to constitute consent to vaginal penetration. We agree with these observations.
[5] The appeal is dismissed.
"R.G. Juriansz J.A."
"David Watt J.A."
"A. Harvison Young J.A."
