WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

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).

(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.

(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.

(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.

(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.

(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.

(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

CITATION: R. v. J.-E. M.-C., 2020 ONCA 140

DATE: 20200221

DOCKET: C64754

Lauwers, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.-E. M.-C.

Appellant

Margaret Bojanowska, for the appellant

Lauren Lindsay, for the respondent

Heard: February 14, 2020

On appeal from the conviction entered on June 7, 2016 by Justice Michael Block of the Ontario Court of Justice.

REASONS FOR DECISION

[1] This is an appeal from conviction for sexual assault. The events occurred in a high school math class. The complainant testified that the appellant took her phone and so she took his hat. A chase ensued, ending at the back of the classroom where the complainant said that the appellant stood behind her, wrapped his arms around her, and touched her vaginal area for what felt like a minute. She was in a crouched position when the touching took place.

[2] There were two other witnesses to the alleged events. They described what they saw somewhat differently than the complainant. Another student said that she saw the complainant on the floor at the back of the classroom, with the appellant off to her side, touching her stomach with one hand, and her vaginal area with the other. The teacher also testified, recounting what she saw. The teacher said that the complainant looked like she was kneeling on the ground with the appellant behind her, reaching around to her front in what appeared to be a bear hug. Their backs were to the teacher and so she could not see what the appellant was doing with his hands.

[3] The appellant argues that the trial judge erred by finding that the witnesses’ accounts corroborated the complainant’s account without first satisfactorily resolving the differences in the three witnesses’ evidence about what they observed.

[4] The trial judge was under no obligation to recount the minute details of each witness’ evidence. Nor was he required to resolve every inconsistency in that evidence. He recounted the important aspects of their evidence, as reviewed above, and concluded that there were no “significant contradictions” in the evidence given by them. This was a conclusion that was available on the evidence. While the complainant described the entire incident as she experienced it, the other witnesses were describing only the parts of the incident that they witnessed from different vantage points within the classroom. The discrepancies in the evidence can be understood as a natural consequence of the fact that the witnesses were positioned differently within the classroom and did not see the same parts of the event. Accordingly, we do not accept the suggestion that the trial judge erred in concluding that the evidence of the other student and teacher corroborated the complainant’s account.

[5] The appellant also suggests that the trial judge erred by failing to consider that the complainant gave contradictory accounts relating to how many times the appellant inappropriately touched her in the classroom over a period of time leading up to and culminating in the event at the back of the classroom.

[6] The complainant told the police that the touching had occurred more frequently than she testified to at trial. The trial judge confronted this inconsistency, finding that it was not a “serious discrepancy”. In arriving at this conclusion, the trial judge took into account the complainant’s age and “apparent immaturity”, as well as the over one-year lapse in time between the incidents and trial. The trial judge concluded that, in light of these circumstances, it did not surprise him that the complainant did not have a “perfect recall of the precise number of incidents” that were involved.

[7] We see no error in this reasoning. It was open to the trial judge to make observations about the complainant’s level of maturity as she presented in the witness stand. He was in a good position to do so. Moreover, it was open to him to apply the common-sense proposition that the passage of time could have an impact on her memory as to the number of times she may have been touched by the appellant. We would defer to that finding.

[8] The appellant also points to an aspect of complainant’s cross-examination that he says so seriously undermines her credibility that it required the trial judge to specifically address the issue. The complainant was asked whether she disagreed that she had told the police that the appellant had touched her on ten prior occasions: “Do you disagree that that’s what you said to the police?” The complainant responded with a simple “yeah”. Crown counsel sought immediate clarification as to whether the witness was answering that she agreed or disagreed with what had been put to her. While the question was clarified, the witness was never asked to clarify her answer.

[9] The appellant relies upon this passage from the cross-examination to suggest that, by denying what was reflected in the transcript of the police interview, the trial judge erred by not specifically resolving this obvious credibility concern. We do not agree.

[10] Read in context, the question was at best confusing. It is unclear exactly what the complainant was agreeing to when she said “yeah”. Although it would have been preferable to have her answer clarified in re-examination, the matter was not so central that it demanded specific attention by the trial judge. He was clearly alive to the discrepancies between the complainant’s statement and her trial evidence, specifically as it related to the “number of inappropriate contacts” prior to the date of the alleged offence. As the trial judge found, the complainant did not “brazenly deny apparent gaps or inconsistencies between her evidence and her statement to the police” and “allowed that her memory might well be flawed, especially in respect of contact with the defendant prior to October the 31st, 2014.” It was open to the trial judge to come to this conclusion in light of the record before him. We would defer to his conclusions in this regard.

[11] The appellant also suggests that the trial judge erred by failing to deal with the suggestion of collusion between the complainant and another classmate. As framed at trial, the issue was whether there was active fabrication arising from collusion. The appellant seems to have moved away from this suggestion on appeal, and now suggests that the trial judge failed to consider whether there was an inadvertent tainting of the witness’ evidence arising from the discussions between the complainant and witness.

[12] The trial judge dealt with the issue of collusion as framed at trial and concluded that there was none. We see no error in his approach. Nor do we accede to the submission, as reframed on appeal, that the simple fact that the complainant and other witness discussed the matter leads to a necessary inference that the other student had a false memory created. There is no evidence of this. Indeed, the differences between the complainant’s and other student’s evidence suggests there was no explicit or implicit collusion.

[13] The appellant further suggests that the trial judge ignored the complainant’s animus toward the appellant which he says gave rise to a motive to lie about the alleged event. The trial judge specifically adverted to the suggestion of animus and rejected it as a possibility. As he stated:

I do not think that [the complainant] had any animus towards [the appellant]. It was plain that she found his attentions bothersome, she had no particular memory of discord over the volume of her music at the end of class…I think her evidence was measured, and she took pains not to exaggerate the level of interaction with [the appellant], or suggest that he may have some powerful attraction to her as a way of explaining his attentions.

[14] The trial judge was alive to the assertion of animus but rejected it. It was open to the trial judge to come to this conclusion and we see no basis upon which to interfere.

[15] The appeal is dismissed.

“P. Lauwers J.A.”

“G.T. Trotter J.A.”

“Fairburn J.A.”