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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

DATE: 20220208 DOCKET: C69055

van Rensburg, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

R.S. Respondent

Counsel: Samuel Greene and Catherine Weiler, for the appellant Andrew Furgiuele, for the respondent

Heard: February 2, 2022 by video conference

On appeal from the acquittal entered by Justice Tory Colvin of the Ontario Court of Justice on January 5, 2021.

Reasons for Decision

[1] The Crown appeals from the acquittal of the respondent on a charge of sexual assault. The Crown asserts three grounds of appeal: (i) that the trial judge incorrectly articulated and applied the law on consent; (ii) that the trial judge’s reasons were insufficient; and (iii) that these errors were material to the acquittal.

[2] We would not give effect to any of these grounds of appeal. On the first ground, the appellant takes issue with the following statement from the trial judge’s reasons:

The issue here is consent. There is no presumption of consent. It must be found in the words or actions of the complainant, as expressions of it. It may also be found in a reasonable and honest belief in the communication of consent by the complainant to [R.S.], which led to the actions.

[3] In our view, this paragraph does not reflect error in the articulation of the proper approach to consent unless one engages in a parsing of the words used, which is not the role of an appellate court: R. v. G.F. , 2021 SCC 20 , 459 D.L.R. (4th) 375, at para. 69. Read fairly, the trial judge correctly set out the requirement of consent and also the alternative defence of honest but mistaken belief. It was the former issue that led to the acquittal.

[4] In order to obtain a conviction, the Crown was required to prove, beyond a reasonable doubt, that the complainant did not consent to the sexual activity. In considering that issue, the trial judge was required to look at all of the evidence, including “the complainant’s words and actions, before and during the incident” to see if they raised a reasonable doubt: R. v. Ewanchuk , [1999] 1 S.C.R. 330, at para. 29.

[5] On that issue, the appellant acknowledges that the complainant and the respondent had offered “diametrically opposed” versions of what had happened. The problem for the Crown at trial was that the trial judge found that the complainant, while a truthful witness, was an unreliable witness. He therefore concluded that the Crown had failed to establish, beyond a reasonable doubt, that there was no consent.

[6] The trial judge gave reasons for his conclusion regarding the credibility and reliability of the complainant as a witness. It is not our job to retry the case, although it is apparent that that is what the appellant invites us to do.

[7] On the second ground of appeal, the trial judge’s reasons are sufficient to allow for appellate review, especially taking into account that this was a short trial conducted in the Ontario Court of Justice, this province’s busiest trial court. The reasons responded to the central issue in the trial, that is, consent. On that point, we note that an acquittal, unlike a conviction, can rest simply on the absence of proof, which is what the trial judge found in this case. The adequacy of a trial judge’s reasons must be assessed in this context: R. v. Walker , 2008 SCC 34 , [2008] 2 S.C.R. 245, at para. 22.

[8] On the third ground of appeal, there is simply no error by the trial judge, thus the issue of materiality does not arise.

[9] The appeal is dismissed.

“K. van Rensburg J.A” “I.V.B. Nordheimer J.A.” “J. George J.A.”