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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-10-23

Docket: C64482

Panel: Feldman, Trotter and Zarnett JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Timothy McNeice Appellant

Counsel

Gavin Johnston, for the appellant

Christine Bartlett-Hughes, for the respondent

Hearing and Appeal

Heard: October 16, 2019

On appeal from: the conviction entered by Justice Matthew C. Webber of the Ontario Court of Justice on April 12, 2017.

Reasons for Decision

Facts

[1] The appellant was convicted of sexual assault. The complainant was the daughter of cottage neighbours of the appellant and his wife. The complainant became close with the appellant and his wife, socializing with them, and in particular, drinking with them. The appellant was 53, the complainant 21 at the time of the offence.

[2] The appellant became infatuated with the complainant and invited her to meet him at a motel. He planned a sexual encounter with her. He stocked the motel room with liquor, knowing the complainant liked to drink. He had rose petals strewn on the bed. She began to drink as soon as she got there. As the night progressed, she continued to drink and began to feel very intoxicated. He made a number of advances which she diverted. Her blouse was removed, and the appellant kissed her, licked her breast, and bit her buttocks.

[3] His position was that the encounter was consensual and that he honestly believed she was consenting. Her position was that she did not consent to anything he did, that she was semi-conscious or in and out of consciousness the whole time.

[4] Eventually he noticed that she was "too relaxed" and asked her if she was falling asleep on him. At that point she jumped up, grabbed her clothes, called her neighbour Ms. C to come and pick her up and ran outside to wait. When Ms. C. arrived, she was so concerned about how intoxicated and sick the complainant was that she took her to the hospital but she was released.

[5] Because the appellant continued to email the complainant and threaten her in the days following the incident, she eventually went to the police to report the sexual assault.

Grounds of Appeal

[6] In oral argument, counsel for the appellant focused on two main grounds of appeal. The first was that the trial judge failed to give the appellant, who was self-represented at the trial, adequate assistance in his conduct of the trial and of his defence, by cutting off an avenue of cross-examination of one of the Crown witnesses, Ms. C.

[7] The appellant had asked Ms. C, who had experience in hypnotherapy, if she had ever hypnotized the complainant between the time of the incident and the time she went to the police and Ms. C answered: no. The appellant then asked the trial judge if he could go on to ask if she had hypnotized the complainant since that time. The appellant explained that he wanted to explore the possibility of collusion. The trial judge disallowed the question. He told the appellant that collusion was not an issue.

[8] The appellant argues that there was an air of reality to the possibility that the complainant was influenced by Ms. C, who had very negative attitudes toward sexual assault and who had a significant interaction with her after the offence. Then in his reasons for judgment the trial judge praised Ms. C and accepted her evidence in its entirety, in particular regarding the complainant's state of intoxication when she picked her up, which was the key to the rejection of the appellant's version of what occurred.

First Ground: Duty to Assist Self-Represented Accused

[9] It is well accepted that the trial judge has a duty to assist an unrepresented accused to understand the issues and to conduct his defence, while all the while maintaining his impartiality. As this court recently stated in R. v. Forrester, 2019 ONCA 255, 375 C.C.C. (3d) 279, the scope of that duty depends on the circumstances of the case and is circumscribed by what is reasonable: at para. 15. The court also stated at para. 16:

A trial judge, of course, has other duties, one of which is to ensure that the trial is effective, efficient and fair to both sides: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 47; and R. v. Snow, 73 O.R. (3d) 40 (C.A.), at para. 24. This includes ensuring that the trial does not become mired in irrelevant evidence and that the rules of evidence are applied fairly to both parties.

[10] In our view, the trial judge lived up to his obligations in this case. The trial judge allowed the appellant to ask Ms. C whether she had hypnotized the complainant before she went to the police and gave her statement about what she says occurred with the appellant. The answer was no. There was little if any relevance to their interactions after that. Furthermore, counsel appointed by the court to cross-examine the complainant had questioned the complainant regarding any discussions she had had with Ms. C, and put to her that she only went to the police because Ms. C told her that she had been sexually assaulted. The complainant responded "no". Therefore any air of reality to that suggestion within a relevant time period was explored and denied. There was no unfairness or prejudice from the trial judge's ruling.

Second Ground: Insufficient Reasons on Honest but Mistaken Belief in Consent

[11] The second issue counsel focused on in oral argument was whether the trial judge failed to provide sufficient reasons regarding the appellant's position that he had an honest but mistaken belief in consent. The submission was that the trial judge erred by failing to make a finding whether he believed the appellant or had a reasonable doubt when he said that the complainant removed her own blouse and returned his kiss, substantiating his belief in consent.

[12] We do not agree. The trial judge made the finding that the complainant was intoxicated and semi-conscious, to the knowledge of the appellant, and therefore knew that she was not willingly consenting to sexual contact. He also found that she did not consent. We see no error in his approach or his finding.

Third Ground: Misapprehension of Evidence and Unreasonable Verdict

[13] Finally, the appellant submitted in his factum that the trial judge erred in misapprehending certain pieces of evidence which he says, when combined with other errors committed by the trial judge, resulted in an unreasonable verdict.

[14] On this record, it cannot be said that the verdict was unreasonable or unsupported by the evidence. There was evidence before the trial judge, which he accepted, that was capable of supporting a conviction. Even with our ability to engage in a limited weighing of this evidence on appeal, it does not alter this conclusion.

[15] Moreover, we are not persuaded that the trial judge misapprehended any evidence that played an essential role in his reasoning process. In a number of instances, the appellant's complaint really boils down to a disagreement with the trial judge's interpretation of various pieces of evidence, or the inferences that he drew from them.

[16] For example, the appellant claims that the trial judge erred in finding that the complainant's understanding of the state of being "unconscious" did not authentically describe that state. We disagree. The evidence as a whole provided an ample basis upon which the trial judge could find that, due to extreme intoxication, the complaint's mental state was incompatible with consent.

[17] The trial judge was entitled to consider the fact that the complainant's call to Ms. C to pick her up was some evidence of a lack of consent to the activity that had just occurred. Although the complainant testified that she had never intended to stay at the motel with the appellant in the first place, she also testified that she usually took taxis. Consequently, the trial judge was entitled to use this evidence as he did.

[18] Similarly, the appellant submits that the trial judge erred in reasoning that the complainant's extreme intoxication when she was picked-up by Ms. C suggested that she was extremely intoxicated during her time in the hotel room. We disagree. Again, this was one piece of evidence from which the trial judge came to the conclusion that the complainant was severely intoxicated at the time of the sexual activity with the appellant.

[19] The appellant's other complaints are similar in nature. The trial judge was not required to draw the inferences that he did from the pieces of evidence identified by the appellant, but it was open to him to do so. We would not give effect to this ground of appeal.

Disposition

[20] The appeal is therefore dismissed.

"K. Feldman J.A."

"G.T. Trotter J.A."

"B. Zarnett J.A."