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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.M., 2020 ONCA 806

Date: 2020-12-14

Docket: C66430

Before: Fairburn A.C.J.O., Watt and Zarnett JJ.A.

Between:

Her Majesty the Queen (Respondent)

and

J.M. (Appellant)

Counsel:

David Anber, for the appellant

Jill Witkin, for the respondent

Heard and released orally: December 7, 2020 by video conference

On appeal from the conviction entered by Justice C. Kehoe of the Ontario Court of Justice, dated October 4, 2018.

Reasons for Decision

[1] This is an appeal from a judge-alone trial where the appellant was convicted of one count of sexual assault.

[2] The appellant raises three grounds of appeal.

[3] First, he claims that the trial judge erroneously applied the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67, (H.L.) In our view, the trial judge understood the rule and the purpose of the rule. We do not intend to go through the alleged material misapprehensions of evidence as they pertain to the application of the rule. Not only were the alleged misapprehensions immaterial to the application of the rule, but the application of the rule was immaterial to the result at trial.

[4] We say this for the following reasons.

[5] The focus of the trial was on whether the very intoxicated complainant, who testified that he awoke to being fellated by the appellant: (a) did not consent; and (b) whether the appellant had a mistaken belief in communicated consent.

[6] The complainant’s evidence was accepted by the trial judge. He was clear that he did not subjectively consent to being fellated by the appellant. Indeed, the trial judge found as a fact that the complainant was unconscious at the start of the sexual activity in question. There was ample evidence supporting that fact, including the degree of his intoxication at that time.

[7] As well, the trial judge found that the Crown had proven beyond a reasonable doubt that the appellant could not have had an honest but mistaken belief in communicated consent because, on the appellant’s own evidence, he took no reasonable steps to ascertain the complainant’s consent. In the circumstances of this case, including the uncontroverted evidence of the complainant’s heavily intoxicated condition, reasonable steps would have required something different than the appellant said he was acting upon which was nothing more than a moan and the interpretation of some body movements.

[8] It was open to the trial judge to conclude that the appellant’s own evidence deprived him of the defence of a mistaken belief in communicated consent. Therefore, even if there were an error in relation to the application of the rule in Browne v. Dunn, it would have had no impact on the verdict in this case.

[9] The reasons just given also explain why the second ground of appeal, an allegation of unreasonable verdict, must also fail. There was ample evidence upon which the verdict rests.

[10] This leaves the final ground of appeal which relates to whether the reasons for judgment were sufficient. They were. Taking a functional approach to the reasons, it is clear why the appellant was convicted. The reasons have permitted meaningful appellate review.

[11] The appeal is dismissed.

“Fairburn A.C.J.O.”

“David Watt J.A.” “B. Zarnett J.A.”