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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 2019-06-24

Docket: C65749

Panel: Benotto, Roberts and Miller JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

L.T. (A Young Person) Appellant

Counsel

For the Appellant: Najma Jamaldin

For the Respondent: Megan Petrie

Heard and Released Orally: June 19, 2019

Appeal Information

On appeal from the conviction entered on June 15, 2018 and the sentence imposed on July 25, 2018 by Justice J.E. Allen of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant submits that the trial judge erred in his credibility analysis of the complainant by failing to consider the inconsistencies arising from different accounts she gave about the alleged sexual assault.

[2] We do not agree. The trial judge did not overlook the inconsistencies. He referred to the complainant's lack of precision with respect to times and her confusion about what happened after the assault. A trial judge is not required to address every inconsistency in the evidence. It was open to him to accept the complainant's evidence and conclude that she said no to the sexual activity and was unshaken in her core account of communicating this to the appellant.

[3] The appellant further submits that the trial judge erred by not considering the defence of honest but mistaken belief prior to making credibility findings.

[4] Again, we do not agree. There was, as the trial judge found, no air of reality to the defence which trial counsel did not raise. The appellant and the complainant gave diametrically opposed versions of what occurred. On the appellant's evidence, she was an active participant. On her evidence, she said no. Honest but mistaken belief is communicated consent as opposed to assumed or implied consent – see R. v. Barton, 2019 SCC 33.

[5] Courts have "generally refused to put the defence of honest but mistaken belief in consent to a jury when the accused clearly bases his defence on voluntary consent and he also testifies that the complainant was an active, eager or willing partner whereas the complainant testifies that she had vigorously resisted. In such cases, the question is generally simply of credibility of consent or no consent." See R. v. Park, [1995] 2 S.C.R. 836 at para. 26.

[6] The appellant's youth and level of maturity were considered and taken into account by the trial judge throughout.

[7] With respect to sentence, we see no error in principle, nor is it demonstrably unfit. Most of the fresh evidence was before the sentencing judge. The appellant's continued efforts at rehabilitation are commendable, but they do not affect the trial judge's determination as to sentence.

[8] The appeal is dismissed, leave to appeal the sentence is granted, but the sentence appeal is dismissed.

M.L. Benotto J.A.

L.B. Roberts J.A.

B.W. Miller J.A.