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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20200302 Docket: C65242

Lauwers, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

J.P. Appellant

Counsel: Mark C. Halfyard, for the appellant Eric W. Taylor, for the respondent

Heard: February 11, 2020

On appeal from the conviction entered on January 4, 2018 by Justice J. Christopher Corkery of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of assault, assault with a weapon, uttering a threat, unlawful confinement, choking, and sexual assault. He received a six month and three day sentence, concurrent on each count.

[2] The appellant had been in an on-again/off-again relationship with the complainant. On the night the offences occurred, the appellant insisted that the complainant meet him to discuss her previous involvement with another man. It was clear from the appellant’s text messages that he was angry with the complainant.

[3] The trial judge reviewed the evidence in detail. The complainant went to her friend L.A.’s home on September 17, 2015. She later left L.A.’s home to meet the appellant at a nearby park. As she approached him, he threw a lacrosse ball toward her head. He then insisted that they go to his mother’s house where he lived. The complainant testified that the appellant repeatedly struck her on the legs with his lacrosse stick as they were walking to the house. She suffered bruises to the back of her legs.

[4] The complainant testified that, when they arrived at the appellant’s house, they went to his basement bedroom, where a further altercation occurred. According to the complainant, among other things, the appellant broke her electronic devices against the wall of his bedroom, threw her on the bed, slapped her face, pinned her to the bed with his knees, broke her bracelet, grabbed her hip piercing, jabbed her in the vagina with a television remote, and spit in her face. He would not let her leave over the course of the entire night. The complainant did not leave the appellant’s home until mid-afternoon the next day. She then proceeded to L.A.’s home, told L.A. what had happened and then went to the police.

[5] The appellant denied striking the complainant with his lacrosse stick, grabbing her hair and smashing her electronics. He denied hitting her, assaulting her with the remote and throwing her on the bed. He had a very different version of events. He attributed the bruises on her arms to an episode of consensual rough sex earlier in the week. While he agreed that he sent certain incriminating text messages to the complainant, such as “[d]on’t make me drag you”, he explained that they were sent in frustration and he knew the complainant would not take them seriously.

[6] The trial judge made these findings:

In considering just the evidence of [the appellant] there is no explanation provided by him for the bruises of [the complainant], apart from her arms. [The complainant’s] evidence, on the other hand, is corroborated first by the existence of these bruises and by the evidence of [the witness] that the bruises were not present the evening before. The only reasonable explanation is that these bruises occurred between the departure from [the witness’s] house, when [the complainant] went to meet [the appellant], and when she returned to [the witness’s] house the next day. The bruises are wholly consistent with what [the complainant] says occurred and I accept that they did occur as a result of her being assaulted by [the appellant].

[7] The indictment charged assault, without specifying the details, and assault with a weapon, being the lacrosse stick. In light of the nature of the charges, it was open to the trial judge to convict the appellant of assault and assault with a weapon based on the bruising to the complainant’s legs and arms.

[8] The appellant challenges the trial judge’s credibility findings on two grounds.

[9] First, he submits that the trial judge failed to address a material conflict in the evidence: the actions and assaults in the bedroom alleged by the complainant could not possibly have occurred without being heard by his mother and her partner. These included his destruction of her electronic devices against the wall, several physical assaults including choking her, pinning her to the bed with his knees on her arms, her allegation that she cried out for the appellant’s mother, followed by 20 or more blows to her face with the heel of his palm which she described as “hard strikes”.

[10] The disputed events took place in a small bungalow in which the quarters were very close and sound carried easily. The appellant’s bedroom was immediately below the kitchen. The appellant’s mother and her partner were in the kitchen for at least some of the time, particularly at the outset, when the encounter in the bedroom between the appellant and the complainant appeared to be the most heated and physical.

[11] The trial judge was alive to the noise issue. He said in an exchange with counsel: “I can anticipate much will turn on my determination of what was heard” by the appellant’s mother and her partner. Being alive to the issue, the trial judge specifically invited submissions on this point.

[12] The defence submitted at trial that in order to find the appellant guilty of the assaults in the house, the trial judge would have to “reject outright” the couple’s evidence – specifically, that they heard nothing. Quite simply, according to the defence, the house was too small for the events as described by the complainant to have occurred without anyone hearing something.

[13] The trial Crown submitted that the complainant, who said things were not loud in the bedroom, should be believed. Even the appellant testified that the tone was a conversational one, not loud while they were arguing.

[14] The trial judge summarized the defence position during the Crown’s submissions: “The defence is saying when I look at this as a whole all of the different things that are happening here including her statement to the police that there’s no way that [the appellant’s mother] could not have heard. I must infer that it didn’t happen because had it happened [she] would have heard something.” The trial judge later repeated what he understood to be the Crown’s argument, that “it’s just one factor I take into account. … The Crown is trying to say, well, no, it’s not as favourable to the defence, is that it’s simply a neutral factor.”

[15] In his reasons, the trial judge found the appellant’s mother and her partner to be credible and reliable, and summarized their testimony:

Simply put, they both testified that they would not have hesitated to respond to any noise or shout coming from [the appellant’s] room that was out of the ordinary. But they heard nothing that evening that concerned them.

[16] The trial judge did not further address the noise issue. The appellant argues that the trial judge was duty bound to address and reconcile the issue, particularly in light of the fact that he found the appellant’s mother and her partner credible.

[17] The appellant’s second credibility argument relates to the complainant’s evidence that the appellant struck her in the face 20 times. The appellant asserts that this should have resulted in bruising, but there was nothing more on her face than a small scratch the complainant said the appellant inflicted. The trial judge did not address this argument in his reasons.

[18] The appellant argues that the failure to address and reconcile these clear concerns over the complainant’s credibility constitutes reversible error. While he acknowledges that the trial judge could accept the complainant’s evidence despite these clear concerns for credibility, he argues that they were so fundamental to the resolution of her credibility that a failure to address them leaves the appellant without any ability to assess the basis upon which he was convicted.

[19] We do not find these omissions in the trial judge’s reasons to be fatal to the convictions. The case turned on the credibility assessments of the complainant and the appellant. The most significant findings leading to the convictions were that the appellant caused the complainant’s bruises by striking her with the lacrosse stick and by pinning her arms down with his knees. The presence of these bruises was capable of confirming the complainant’s account. As the trial judge noted, L.A.’s evidence provided powerful corroboration of the complainant’s version of events. In particular, L.A. saw the complainant in shorts and a tank top just before she departed to see the appellant. She was not bruised at that time. L.A. saw the complainant just after she left the appellant’s residence, dressed in the same clothing, and showing bruising to a portion of her body. L.A.’s evidence was not challenged. As she said: “I do remember just being overwhelmed by the little marks that were on her body at the time. The ones I do remember were the big bruises on her legs and those ones lasted for a while.”

[20] Moreover, there were all manner of reasons why the complainant may not have experienced serious bruising to her face, including how and where she was struck in the face. While the exhibits with photos of the complainant’s face do not show obvious bruising, they reveal scratch marks consistent with her account. In these circumstances, we do not accept that the trial judge’s failure to deal with this issue and how it impacted on the complainant’s credibility is fatal to the conclusion reached by him.

[21] In any event, the trial judge did not rest the assault and assault with a weapon conviction on the blows to the complainant’s face. Those charges were sustained simply on the basis of the walk toward the house and the bruising on the complainant’s legs.

[22] In addition, we agree with the observation made by the trial judge during submissions that the noise issue was just one factor in the credibility analysis. The evidence of both the complainant and the appellant was that their arguing was not loud. The mother and her partner’s failure to hear anything did not mean that nothing happened. It means that they did not hear anything. In these circumstances, the failure to address the issue does not constitute reversible error.

[23] The trial judge’s credibility findings are entitled to deference; he made no palpable and overriding errors.

[24] The appeal is dismissed.

“P. Lauwers J.A.”

“Gary Trotter J.A.”

“Fairburn J.A.”