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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20211025 DOCKET: C67823
Simmons, Lauwers and Pardu JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
A.B. Appellant
Counsel: Phillip Millar, for the appellant Nicholas Hay, for the respondent
Heard: October 18, 2021 by video conference
On appeal from the conviction entered by Justice J. Donohue of the Superior Court of Justice on December 20, 2019.
Reasons for Decision
[1] Following a judge alone trial, the appellant was convicted of sexual assault and sentenced to two years’ imprisonment. He appeals against conviction.
Background
[2] The complainant and the appellant are distant relatives but were not well acquainted in April 2018 when the events giving rise to the charge took place. The complainant was 19 at the time; the appellant was 48.
[3] Following several hours of socializing during which both consumed alcohol and marijuana, the two went for a drive. After the appellant's truck became stuck on a muddy road, the complainant tried to push the truck from the mud on her own and lost her shoes in the process. The appellant went for help, leaving the complainant on her own in the truck without the keys for about 45 minutes to an hour.
[4] The trial judge accepted the complainant's evidence that she fell asleep following the appellant's departure and later awoke to find him having sexual intercourse with her. Further, the trial judge rejected the appellant's evidence that he first performed oral sex on the complainant's implicit invitation before engaging in sexual intercourse with her.
[5] Among other things, the trial judge found as a fact that, on the morning following the events, the appellant’s initial interaction with a cousin amounted to an admission of having committed a sexual assault. In the trial judge's view, the appellant subsequently modified his position to being an acknowledgment that consensual sex should not have occurred in all the circumstances.
[6] In any event, the trial judge was satisfied that the complainant fell asleep as a result of drinking and consuming drugs while the appellant went for help. Accordingly, the complainant was not capable of consenting to sexual intercourse.
[7] Further, even on the appellant's own version of events, the trial judge was satisfied that the complainant said nothing that would constitute consent to intercourse following oral sex.
[8] Finally, the trial judge was satisfied that even on his own version of events, the appellant did not have an honest but mistaken belief in consent as he had not taken reasonable steps to ascertain that the complainant was consenting taking account of the following factors:
- the complainant had been drinking and smoking pot over several hours;
- the complainant's behaviour, in trying to push the truck out of the mud on her own was bizarre; and
- neither had previously expressed any sexual interest in the other.
[9] In the trial judge's view, on the appellant's own evidence, the appellant was reckless or wilfully blind to the lack of consent.
The appellant’s position on appeal
[10] On appeal, the appellant submits that the trial judge misapprehended the evidence concerning the appellant’s after-the-fact conduct; failed to address whether the appellant's evidence raised a reasonable doubt in accordance with W.(D.) [1] ; and failed to properly consider the reasonable possibility arising from the circumstantial evidence that the sexual contact had been consensual.
Discussion
[11] We do not accept these submissions.
(i) The misapprehension of evidence issue
[12] The complainant's cousin gave evidence that included the following. On the morning after these events, the appellant had a concerning look on his face and asked to speak to her. He just started saying, “I fucked up. I fucked up. I fucked up. Can you find it in your heart to forgive me?” The appellant appeared hysterical and started talking about himself and the complainant. After he calmed down, the appellant said he had sex with the complainant because she asked him to keep her occupied. However, he said was taken aback when, afterwards, the complainant was upset.
[13] In our view, it was open to the trial judge, on the basis of this evidence, to conclude that the appellant's initial statements to the complainant's cousin amounted to an acknowledgment of having committed a sexual assault and that the appellant modified this acknowledgment as time went along. It was the trial judge’s function, as the trier of fact, to determine what, if any, significance should be attributed to this evidence. Given the witness’s description of the appellant’s statements and demeanour, we see nothing unreasonable about the trial judge’s conclusion.
[14] Moreover, we are not satisfied that the trial judge misunderstood the evidence concerning whether the complainant complained to her grandmother prior to this discussion. The trial judge gave his reasons orally the day after the evidence and submissions were completed. Although in his initial summary of his assessment of the evidence, the trial judge said the complainant complained to her grandmother immediately upon arriving back at her grandmother’s residence, the trial judge later clarified when reviewing the evidence that the complainant disclosed the events after she had had a rest.
[15] Further, even assuming the trial judge’s reference to an "official complaint" means he thought the appellant spoke to the complainant's cousin after the complainant complained to her grandmother, we reject the appellant's submission that this somehow taints the trial judge’s finding that the appellant made an admission of guilt. The trial judge made his finding based on what was said, not based on the timing of the events. The appellant's submissions about the complainant's cousin's subsequent text to the complainant giving rise to a motive to fabricate were not raised at trial. In any event, the text did not refer to the appellant's statements about he and the complainant having sex.
(ii) The W.(D.) issue and the circumstantial evidence issue
[16] In our view, the appellant's submissions about the manner in which the trial judge weighed the evidence and the inferences arising from the circumstantial evidence are nothing more than a request that we retry the case. That is not our function.
Disposition
[17] Based, on the foregoing reasons, the appeal is dismissed.
“Janet Simmons J.A.”
“P. Lauwers J.A.”
“G. Pardu J.A.”