Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: C66755

Simmons, Lauwers and Pardu JJ.A.

Between:

Her Majesty the Queen Respondent

and

N.T. Appellant

Counsel: John Hale, for the appellant Rebecca Schwartz, for the respondent

Heard: October 19, 2021 by video conference

On appeal from the convictions entered by Justice Michel Z. Charbonneau of the Superior Court of Justice on April 3, 2019.

Reasons for Decision

[1] Following a judge alone trial, the appellant was convicted of one count of sexual interference and one count of assault but acquitted of sexual assault and invitation to sexual touching. All charges related to the appellant's step-daughter.

[2] The appellant testified at trial and denied the incident that was the foundation for the sexual interference and sexual assault charges. Although he acknowledged physical contact with the complainant during the incident forming the subject matter of the assault charge, his version of the event raised s. 43 of the Criminal Code, R.S.C. 1985, c. C-46, as a potential defence.

[3] The appellant raises two issues on appeal.

[4] First, the appellant submits that the trial judge’s reasons are insufficient for several reasons. The appellant contends that the reasons fail to explain how the trial judge resolved the inconsistent versions of events, why he rejected the appellant’s evidence or set out any pathway to conviction. The reasons make only passing reference to the appellant’s evidence and fail to apply W.(D.) [1]. Further, the reasons do not address the elements of the offences or the s. 43 defence. Overall, the deficiencies in the reasons render them immune to appellate review.

[5] Second, the appellant submits that the trial judge’s reasons for sentence demonstrate he intended to convict the appellant of the second count of the indictment, sexual assault, and acquit him of the more serious charge of sexual interference.

[6] We do not accept these submissions.

[7] Regarding the physical assault, the trial judge gave extensive reasons explaining why he accepted the evidence of the complainant and her mother and rejected the challenges to their credibility raised by the defence. Although the appellant acknowledged physical contact with the complainant during the incident forming the subject matter of the assault charge, he denied the level of angry physical force described by the complainant. Instead, he explained he intervened to prevent escalation of a confrontation between the complainant and her mother and relied on s. 43 of the Criminal Code as a defence. The mother’s evidence concerning the assault supported the complainant's evidence and undermined the appellant's account.

[8] Contrary to the appellant’s submissions, the trial judge expressly adverted to W.(D.) when addressing the assault. If not explicit, it is implicit from the trial judge’s reasons that he rejected the appellant’s account of the assault because he accepted the Crown's evidence. On the complainant’s version of the assault, it was unnecessary that the trial judge go into greater detail concerning why a s. 43 defence was not available.

[9] Concerning the sexual interference offence, the appellant denied that the incident described by the complainant occurred. Once again, if not explicit, it is implicit in the trial judge’s reasons that he rejected the appellant’s denial because he accepted the complainant’s testimony. Further, we are satisfied that a finding of sexual purpose is the only reasonable inference arising from the trial judge’s description of the sexual touching incident. [2]

[10] The trial judge’s oral reasons were in large measure a response to the submissions that were made to him the previous day. On our review of the record, the trial judge’s path to conviction is apparent. He found guilt beyond a reasonable doubt based on a considered and reasoned acceptance of the Crown’s evidence: R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 53-55, leave to appeal refused, [2007] S.C.C.A. No. 69.

[11] As to the second issue, we reject the appellant's submission that the reasons for sentence demonstrate the trial judge intended to convict of sexual assault and not sexual interference for the breast cupping incident. A fair reading of the sentencing reasons demonstrates that after initially referring explicitly to the sexual interference offence, the trial judge subsequently used the term “sexual assault” as a shorthand to describe it. As we have explained, we are satisfied that the trial judge made a finding of sexual purpose in relation to the breast cupping incident in his reasons for decision. We do not read the reference to absence of a sexual purpose in his reasons for sentence as referring to that incident.

[12] Finally, we accept the Crown's submission that the acquittal on the sexual assault charge, which also related to the breast cupping incident, was patently an error in law and did not render the verdicts on the sexual interference and sexual assault counts inconsistent: R. v. Plein, 2018 ONCA 748, 50 C.R. (7th) 41.

[13] Based on the foregoing reasons, the appeal is dismissed.

"Janet Simmons J.A."

"P. Lauwers J.A."

"G. Pardu J.A."

Footnotes

[1] R. v. W.(D.), [1991] 1 S.C.R. 742.

[2] The trial judge said: However, on one occasion it was different. She has indicated she was in front of the sink and that he groped her breast, not briefly, but for several seconds he actually groped her breast and in a sexual manner.