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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 2019-11-13

Docket: C59587

Panel: Lauwers, van Rensburg and Hourigan JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

David Eaton Appellant

Counsel

David Eaton, self-represented

Erica Whitford, for the respondent

Hearing

Heard: November 4, 2019

On appeal from: the conviction entered on November 12, 2013 and the sentence imposed on July 2, 2014 by Justice G. Toscano-Roccamo of the Superior Court of Justice.

Reasons for Decision

Background

[1] The appellant was convicted of sexual assault in November, 2013. He was sentenced in July, 2014 to 18 months' custody, after credit of six months, followed by three years' probation.

[2] In his sentence appeal, the appellant made a claim of ineffective assistance of counsel. He asserted that his lawyer, contrary to his instructions and interests, had requested a fitness assessment during the sentencing proceedings. At the hearing of the appeal, the appellant asserted that he had been denied additional disclosure from the Crown, for the purpose of arguing in his sentence appeal, and to support a different argument – that, contrary to the fitness assessment, he was not in fact fit when he was sentenced, and that he was subject to segregation and psychological harm in serving his sentence.

[3] The appellant's sentence has been served. There is no reason to address his sentence appeal, which is moot. Indeed, the appellant confirmed that his objective in pursuing the appeal is to avoid a criminal record for sexual assault. As such the focus is on his conviction appeal.

Grounds of Appeal

[4] The appellant raises two grounds of appeal from conviction. First, he says that the trial judge reversed the onus of proof and required him to disprove the complainant's account of what transpired at the time of the alleged sexual assault. Second, he says that the trial judge erred in admitting into evidence his statement to the police, after concluding that it was voluntary and did not violate his Charter rights.

Trial Judge's Reasons

[5] The trial judge gave thorough and careful reasons both in respect of her Charter ruling and in finding the appellant guilty of the offence of sexual assault.

[6] We see no error in the trial judge's analysis and conclusions.

First Ground of Appeal: Reversal of Onus

[7] With respect to the first ground of appeal, the appellant points to para. 53 of the trial judge's reasons as indicative of her having reversed the onus of proof. We disagree. The fact is that the appellant did provide an account of the sexual encounter that differed from that of the complainant. In paragraph 53 the trial judge explains why his evidence did not leave her in a reasonable doubt on the issue of consent.

[8] There is no basis, on a fair reading of the entirety of the trial judge's reasons, to conclude that she reversed the burden of proof or in any way put the onus on the appellant to disprove the complainant's account. Rather, she pointed out the numerous inconsistencies in the appellant's own account of what transpired, that led her to conclude that the appellant was not providing truthful or reliable evidence. Only after explaining why she did not accept the appellant's evidence, and that it did not raise a reasonable doubt, did the trial judge evaluate the complainant's evidence and conclude that she was satisfied beyond a reasonable doubt as to the appellant's guilt.

Second Ground of Appeal: Admissibility of Police Statement

[9] We also see no error in the trial judge's conclusion that the appellant's police interview was admissible in evidence as a voluntary statement and obtained without any breach of his Charter rights.

[10] We agree with the trial judge's analysis of the Oickle factors (R. v. Oickle, 2000 SCC 38) and her conclusion that the appellant attended voluntarily to speak with Sergeant Harding, in an effort to distance himself from the allegations of sexual assault made by the complainant.

[11] We also see no reason to interfere with the trial judge's conclusion that the appellant was not detained when he gave his statement. This was fully supported by the evidence at the voir dire: the appellant attended at the police station knowing that he was a suspect in a sexual assault and that the complainant said that she had not consented to the sexual encounter. He was invited to provide his own account, which he did, albeit stating, untruthfully, that there had been no sexual contact. He was told repeatedly that he did not have to say anything, and he was offered the opportunity to consult with legal counsel. The trial judge explained why she rejected the appellant's contention that he had been "ordered" to attend, and his conflicting evidence about what he was told, which in some respects differed from what was depicted on the video recording of the interview.

[12] While the trial judge ought to have applied the Grant factors (R. v. Grant, 2009 SCC 32) rather than those in *R. v. Moran* (1987), 36 C.C.C. (3d) 225 (Ont. C.A.) in determining whether the appellant was detained, we are satisfied that the result would necessarily have been the same. The trial judge's reasons for rejecting the appellant's evidence, and her observations of what occurred during the interview fully support the conclusion that he was not psychologically or otherwise detained at the time of his interview.

Disposition

[13] For these reasons we dismiss the appeal from conviction and the sentence appeal.

P. Lauwers J.A.

K. van Rensburg J.A.

C.W. Hourigan J.A.