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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Mastenbroek, 2020 ONCA 76
DATE: 20200131
DOCKET: C66696
Watt, Tulloch and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Casey Mastenbroek
Appellant
Walter Fox and Sayeh Hassan, for the appellant
Catherine Weiler, for the respondent
Heard and released orally: January 22, 2020
On appeal from the conviction entered on November 23, 2018 by Justice Kenneth G. Hood of the Superior Court of Justice.
REASONS FOR DECISION
[1] The appellant was convicted of sexual assault after a trial before a judge of the Superior Court of Justice sitting without a jury. He was sentenced to a term of imprisonment of 20 months and ordered to comply with a probation order for a period of 2 years after his release from custody.
[2] In this court, the appellant advanced three grounds of appeal against conviction. He says that the trial judge erred:
i. in failing to deal with inconsistencies in the testimony of various Crown witnesses, in particular, the testimony of the complainant;
ii. in engaging in stereotypical reasoning in assessing the testimony of two Crown witnesses and the appellant; and
iii. in failing to appreciate the motive advanced by the appellant for the complainant’s claim that the acts of sexual intercourse were not consensual.
[3] On the evidence adduced at trial, the trial judge found, as he was entitled to do, that the complainant did not consent to having sexual intercourse with the appellant. He also found, again as he was entitled to do, that she was incapable of consenting to that sexual activity. He rejected, as unworthy of belief, again as he was entitled to do, the testimony of the appellant.
[4] The reasons of the trial judge well explain the factual conclusions he reached which led him to his finding that the appellant’s guilt of sexual assault had been established beyond a reasonable doubt.
[5] In our view, the trial judge’s analysis of the issue of consent was sound. His assessments of credibility reveal no flaw and are entitled to deference in this court. We are not persuaded that he misapprehended any material evidence or that he misapprehended the position advanced by defence counsel on the appellant’s behalf.
DISPOSITION
[6] The appeal is dismissed.
“David Watt J.A.”
“M. Tulloch J.A.”
“Gary Trotter J.A.”