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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-10-18

Docket: C66042

Judges: Watt, Lauwers and Paciocco JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Ashdon Cooper Appellant

Counsel

Paul J.I. Alexander, for the appellant

Erica Whitford, for the respondent

Hearing and Appeal

Heard and released orally: October 7, 2019

On appeal from: the conviction entered on May 7, 2018, and the sentence imposed on August 14, 2018, by Justice John McInnes of the Ontario Court of Justice.

Reasons for Decision

The Background Facts

[1] After a trial before a judge of the Ontario Court of Justice, the appellant was convicted of sexual interference, invitation to sexual touching, and breach of recognizance arising out of an approximately two-week-long relationship with a 14-year-old first year high school student. The appellant was 23 years of age.

[2] The complainant gave evidence about the history of her relationship with the appellant. She described its beginnings, its swift progression to sexual intercourse, and repeated occurrences of sexual intercourse and related sexual activity, much of it in the appellant's motor vehicle, over the following ten days to two weeks. Her account was vigorously challenged in cross-examination.

[3] The defence position at trial was that the events described by the complainant never took place. The complainant had never been in the appellant's motor vehicle. No sexual relationship of any kind had occurred. The appellant did not testify.

The Grounds of Appeal

[4] The appellant advances two grounds of appeal against his conviction. He says that the trial judge erred:

i. in failing to address inconsistencies and conflicts in the evidence; and

ii. by drawing an inference of guilt from circumstantial evidence without considering whether the underlying facts from which that inference was drawn were properly established.

Discussion

[5] In our view, the trial judge's reasons, taken as a whole, grappled appropriately with the inconsistencies in the complainant's evidence, and as between her evidence and the testimony of R.D. and W.R., the appellant's then girlfriend.

[6] The record at trial furnishes ample confirmation of the core of the complainant's testimony. In particular, the significant number of communications passing between the parties during the period of the relationship; the complainant's accurate description of the appellant's apartment; her similarly accurate description of the appellant's vehicle, in which she alleged several of the acts took place; and the confirmation afforded by the testimony of R.D.

[7] The appeal from conviction is dismissed.

[8] Leave to appeal sentence is granted, and the sentence varied to the extent that the victim surcharge imposed at trial is set aside.

David Watt J.A.

P. Lauwers J.A.

David M. Paciocco J.A.