Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

DATE: 20210323 DOCKET: C67003

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

J.C. Appellant

Counsel: Jessica Zita, for the appellant Samuel Greene, for the respondent

Heard and released orally: March 15, 2021 by video conference

On appeal from the conviction entered by Justice Karey Katzsch of the Ontario Court of Justice on February 19, 2019, and from the sentence imposed on May 27, 2019.

Reasons for Decision

[1] The appellant appeals his convictions for sexual assault and common assault, as well as the sentence imposed of 45 days to be served intermittently and two years’ probation.

[2] The appellant submits that the trial judge did not properly assess the credibility and the reliability of the complainant’s evidence and applied a different standard of scrutiny to the evidence of the defence and the Crown. The appellant also alleges that the trial judge failed to properly apply the third prong of R. v. W.(D.), [1991] 1 S.C.R. 742 by undertaking a credibility contest, and that she rendered an inconsistent and unreasonable verdict on the sexual assault conviction.

[3] On the sentence appeal, the appellant submits that the trial judge failed to apply the principle of restraint, as the appellant was a first-time offender. The appellant also argues that the sentence should be reduced to time served as a result of the COVID-19 pandemic.

[4] We dismiss the appeal. Most of the appellant’s arguments are, in effect, requests for this court to carry out a fresh assessment of credibility and to consider the alleged inconsistencies in the Crown’s evidence but, contrary to the trial judge’s assessment, to resolve them in favour of the appellant.

[5] In our view, there is no basis to interfere with the trial judge’s findings. Her reasons clearly explained why she found the complainant credible. She acknowledged the minor inconsistencies in the complainant’s evidence and was not required to address all of them in her reasons. She acknowledged the alleged inconsistencies between the complainant’s evidence and Mr. Wilmer’s evidence. These were minor in nature and did not detract significantly from the Crown’s case.

[6] We also disagree with the appellant’s submission that the trial judge misapplied the W.(D.) analysis. The reasons demonstrate that the trial judge understood and properly applied the third step of W.(D.) and did not treat the case as a credibility contest.

[7] As for the appellant’s submission that the verdict is inconsistent, we agree with the Crown’s argument that the conviction for assault on the second count demonstrates that the trial judge considered the evidence as a whole to see if she was left with a reasonable doubt. The trial judge did not have to choose between competing versions of events, nor was she limited to accepting both or neither of the complainant’s versions of the incidents. It was open to her to accept the complainant’s version for one incident but to be left with a reasonable doubt on the other.

[8] We also see no basis to interfere with the sentence imposed. The trial judge decided to impose a shorter sentence than the Crown requested, imposed an intermittent sentence, observed that the principles of denunciation and deterrence were necessary here and recognized the mitigating and aggravating factors. This was a tailored sentence that is appropriate and well within the range.

[9] As for the COVID issue, the appellant has not sought to file fresh evidence as to how intermittent sentences are being administered. In any event, we see no basis to reduce the sentence.

[10] For these reasons, the conviction and sentence appeals are dismissed.

“Paul Rouleau J.A.”

“S.E. Pepall J.A.”

“L.B. Roberts J.A.”