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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-10-09

Docket: C65711

Panel: Strathy C.J.O., Doherty and Tulloch JJ.A.

Between

Her Majesty the Queen Respondent

and

M.G. Applicant (Appellant)

Counsel:

• Jessica Zita, for the appellant
• Gerald Brienza, for the respondent

Heard: October 2, 2019

On appeal from: the conviction entered by Justice S. Campbell of the Superior Court of Justice, dated October 12, 2017, and on appeal from the sentence imposed on June 1, 2018.

Reasons for Decision

[1] The appellant was convicted of sexual assault and sentenced to 14 months in jail, to be followed by 3 years probation. He appeals conviction and, if leave is granted, appeals sentence.

[2] This was a straightforward single-issue case. The complainant testified that she did not consent to sexual intercourse with the appellant who was her roommate. According to her, she was asleep when the appellant penetrated her. The appellant testified that the complainant did consent to sexual intercourse. The Crown also introduced a video statement made to the police by the appellant after his arrest. The defence agreed that the statement was voluntary. Parts of the statement were internally inconsistent, but the trial judge found that parts of the statement were inculpatory. He accepted those parts of the statement.

[3] The trial judge rejected the evidence of the appellant. He believed the complainant's testimony. He also expressly indicated that the appellant's evidence did not leave him with a reasonable doubt and that, on the totality of the evidence, the Crown had proved guilt beyond a reasonable doubt.

[4] The appellant raises several somewhat interrelated grounds of appeal. First, he takes issue with several aspects of the trial judge's analysis of the complainant's evidence. He submits that the trial judge "glossed over" certain inconsistencies in her evidence concerning the events that ultimately led her to report the incident to the police about two months after it occurred.

[5] The trial judge referred to this evidence at length in his summary of the evidence. Parts of the complainant's evidence in this area could be described as confusing. They were not, however, necessarily inconsistent. It was the trial judge's responsibility to assess that part of the complainant's evidence in the context of the totality of the evidence and having regard to the only live issue at trial – did the Crown prove that the complainant did not consent? There was no error in the trial judge's treatment of the complainant's evidence.

[6] Next, the appellant argues that the trial judge did not properly take into account the appellant's intellectual limitations when assessing the evidence. The trial judge did take this evidence into account when evaluating what he should make of the appellant's statement to the police. The defence had argued that the appellant's intellectual limitations explained many of the deficiencies in his statement.

[7] The trial judge, who had the advantage of seeing the video, concluded that the appellant's intellectual limitations played no role in his ability to comprehend and respond to the questions put to him by the police officer. The trial judge gave reasons for that finding. They are unassailable. The trial judge's failure to refer specifically to a psychological report prepared many years earlier when the appellant was in grade one, and entered through the appellant's mother, is of no consequence.

[8] The argument that the trial judge engaged in uneven scrutiny of the evidence of the appellant and the complainant finds no support in the reasons. The trial judge scrutinized all of the evidence carefully, including the testimony of the appellant and the complainant. He also carefully reviewed the appellant's statement to the police and the arguments arising out of that statement. The trial judge may not have given some inconsistencies in the complainant's evidence on peripheral matters the significance that the appellant says he should have. However, that does not suggest uneven scrutiny.

[9] The submission that the trial judge determined guilt exclusively by treating the case as involving a "credibility contest" between the appellant and the complainant without regard to the burden of proof ignores the trial judge's repeated references to, and application of, the burden of proof as captured in the well-known principles found in R. v. W.D. The appellant's submission that the trial judge decided the case based exclusively on a credibility assessment rests on a single sentence in the reasons and ignores the repeated earlier references to the burden of proof.

[10] Finally, the argument that the trial judge misapprehended material parts of the evidence cannot succeed. Counsel reviewed the findings. In our view, the findings of fact essential to the verdict were firmly rooted in the evidence. Even if the trial judge misapprehended evidence in respect of a peripheral fact, that misapprehension does not affect the validity of the verdict.

[11] The conviction appeal is dismissed.

[12] The jail term of 14 months imposed by the trial judge was well within the applicable range. The seriousness of the offence and the aggravating circumstances (the complainant, who was the appellant's roommate, was asleep when the assault occurred) warranted a significant reformatory term. Fourteen months is well within that range.

[13] We also would not interfere with the three-year probation order imposed by the trial judge. The reasons provided by the trial judge provide ample justification for the order. The terms are not particularly onerous. It is also open to the appellant, should the proper basis arise, to apply to the trial court for early termination of the probation order.

[14] The appeals from conviction and sentence are dismissed.

"G.R. Strathy C.J.O."

"Doherty J.A."

"M. Tulloch J.A."