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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. P.G., 2020 ONCA 588

DATE: 20200921

DOCKET: C68036

Fairburn A.C.J.O., MacPherson and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.G.

Appellant

P.G., acting in person

Mark Halfyard, appearing as duty counsel

Andrew Hotke, for the respondent

Heard: September 8, 2020 by video conference

On appeal from the convictions entered on December 9, 2019 and the sentence imposed on February 5, 2020 by Justice Kelly A. Gorman of the Superior Court of Justice.

REASONS FOR DECISION

[1] In December 2019, the appellant was convicted of sexual assault, forcible confinement and assault by Gorman J. of the Superior Court of Justice following a trial in Windsor. In February 2020, the appellant received a custodial sentence of two years less a day and s. 109 firearms (10 years) and SOIRA (20 years) orders.

[2] The appellant appeals the convictions and the sentence.

[3] The appellant and the complainant met on Instagram and then in person. The appellant was 19 years old and the complainant was 17 years old.

[4] On April 21, 2017, the appellant and the complainant were arguing by text message about the complainant’s plan to attend a local festival. The appellant invited the complainant to his house to continue the discussion in person. Later, they went, along with friends, to a bowling alley. At the end of the evening, the complainant drove the appellant back to his house and she accepted his invitation inside.

[5] Once inside, the appellant and the complainant went to the appellant’s bedroom. According to the complainant, she agreed to cuddle but within a few minutes the appellant was trying to have sex. She refused. The appellant tried to take off her clothes and kept telling her that he wanted to have sex. She tried to push off the appellant but he told her to stop fighting because he was stronger. He put his penis in her vagina and told her that she was not allowed to leave and not permitted to go to the festival. He began wrestling with her, held her hands above her head, and called her names.

[6] The complainant then heard a text alert and asked the appellant to permit her to respond to it or to go to the bathroom. The appellant told her again that she was not allowed to leave. She was sobbing. The appellant’s parents entered the room, told the appellant to give the complainant her clothes, and told the complainant she could leave the room.

[7] The appellant’s father walked the complainant to the door. She told him that she would not press charges. She testified that she said this because she thought she would not otherwise be allowed to leave.

[8] The trial judge found the complainant to be “entirely credible … her evidence [was] internally consistent and not [overreaching].”

[9] The appellant testified at the trial. The trial judge said this about his testimony:

I found the accused to be incredulous. On many occasions he went out of his way in an effort to paint [the complainant] in a negative light. His testimony that she was drinking at the bowling alley, driving poorly, and that she banged her head while exiting the vehicle was entirely self-serving.

[10] Against this backdrop of her assessments of the two principal witnesses, the trial judge convicted the appellant of the three offences with which he had been charged.

[11] The appellant, assisted by duty counsel, advances three arguments on the conviction appeal.

[12] First, the appellant points out that the complainant was 17, a child, when the alleged sexual assault, confinement, and assault took place. She was 19, an adult, when she testified at the trial. In her reasons, the trial judge said:

With these principles in mind, it should be noted that [the complainant] was 17 years old at the time of the allegations. While not a very young child, she was a child nonetheless. As the court stated in R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] CarswellSask 20, at para. 56:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

Applying the law to the evidence, I found [the complainant] to be entirely credible. She testified about matters that occurred two years ago when she was 17 years old. I agree with the submission of the Crown that she did her best. I found her evidence to be internally consistent and not [overreaching].

[13] Based on this passage, the appellant contends that the trial judge erred by giving the complainant testimonial latitude on account of her age by improperly treating her as a child witness when, in fact, she testified as an adult.

[14] We are not persuaded by this submission. In our view, in this passage the trial judge was simply stating that the complainant was a child – and indeed “not a very young child” – when the assaults and confinement occurred; she was not saying that the complainant was a child when she testified or that she was treating the complainant’s testimony as that of a child witness. All the trial judge said, accurately, was: “[The complainant] testified about matters that occurred two years ago when she was 17 years old.”

[15] Second, the appellant submits that the age difference between the appellant (19 at the time of the events) and complainant (17) led to the trial judge applying a different standard of scrutiny to their evidence.

[16] We do not accept this submission. It is anchored in the same assertion as that made in the appellant’s first ground of appeal: the trial judge treated the complainant as a child witness. Since we have rejected that assertion, it follows that we are satisfied that the trial judge considered the appellant’s and the complainant’s testimony in a proper and balanced fashion.

[17] Third, the appellant asserts that the trial judge erred in finding collusion between the appellant and his parents, both of whom testified.

[18] We disagree. The trial judge made no finding of collusion. All she did was point to the similarity of their evidence to support her rejection of the appellant’s testimony that he had not talked to his parents about the case.

[19] Neither the appellant nor duty counsel made submissions about the sentence.

[20] The conviction and sentence appeals are dismissed.

“Fairburn A.C.J.O.”

“J.C. MacPherson J.A.”

“S. Coroza J.A.”