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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220429 DOCKET: C69052

Pepall, van Rensburg and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

J.A. Appellant

Counsel: Stephen Proudlove and Alefia Ghadiyali, for the appellant Gregory Furmaniuk, for the respondent

Heard: April 25, 2022

On appeal from the conviction entered on November 20, 2019 by Justice Clyde Smith of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of sexual interference and sentenced to four years in prison. His conviction for sexual assault was conditionally stayed pursuant to Kienapple. He appealed his convictions. At the hearing of the appeal, we dismissed the appeal with reasons to follow. These are our reasons.

[2] The charges arose in November 2017 after the police received a complaint by P.M., a 15-year-old girl, of a non-consensual sexual encounter with the appellant at the apartment of a mutual friend two or three months earlier. The appellant was 23 years old at the time. The complainant testified that the appellant must have known her age because she had been talking about her upcoming “sweet 16” birthday.

[3] The sole issue on this appeal is whether the trial judge made a reversible error in his ruling on the Crown’s motion, admitting as voluntary the appellant’s statement to the police as evidence at his trial. The statement consisted of a 20‑minute long video-recorded interview that occurred 90 minutes after the appellant’s arrest. In the course of the interview, he was informed of the name of the complainant and what she said about the sexual encounter, including where and approximately when it took place. During the interview the appellant maintained that he had no recollection of anyone by that name, or the events in question. At trial, he testified that he recalled the events after having seen the video statements of the witnesses. He admitted having had sexual intercourse with the complainant. The appellant testified that the sexual acts were consensual and that he believed P.M. was 16 years old because he overheard a discussion about her upcoming 17th birthday.

[4] The police statement played an important role in the trial judge’s W.(D.) analysis (R. v. W.(D.), [1991] 1 S.C.R. 742). Referring to the statement, the trial judge did not accept that the appellant was so forgetful that he could have failed to recall a sexual encounter two or three months after the fact, particularly when contrasted with the nature and extent of the detail he was able to provide in his testimony at trial two years later. The trial judge concluded from this that the appellant was “careless with the truth”.

[5] Although the appellant raised three arguments in his factum on appeal, only one was pursued in oral argument. The other two were abandoned. The appellant contends that the trial judge, after concluding that he had been offered an inducement by the police, failed to consider all of the circumstances, including those that were oppressive, in determining whether there was a reasonable doubt as to whether the appellant’s will had been overborne. The appellant points to the trial judge’s statement that the parties were in agreement that any evidence suggesting oppression did not rise to the standard that would render the statement involuntary. He contends that the only defence concession was that the circumstances alleged to be oppressive did not in themselves render the statement involuntary, but that the trial judge should have, and did not, consider such circumstances as part of the overall context.

[6] We disagree. A trial judge’s finding of voluntariness is essentially a factual determination, requiring a “contextual analysis of the particular circumstances surrounding the making of the statement in issue”. Absent a legal error in determining the test for voluntariness or a palpable and overriding error of fact, a determination of voluntariness is subject to considerable appellate deference: R. v. Morgan, 2021 ONCA 531, at para. 23. No such error has been demonstrated in this case.

[7] The trial judge, having heard the evidence and submissions of counsel on the voir dire, correctly stated the issue before him and the applicable legal test. After finding an inducement – that an unidentified uniformed officer told the appellant to be cooperative and that he might or would likely get released on a promise to appear – he noted that the question was whether the inducement “on its own or in combination with other factors … is strong enough to raise a reasonable doubt about whether the accused’s will has been overborne” (citing R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 76).

[8] Contrary to the appellant’s submission, we are satisfied that the trial judge, after referring explicitly to the need to consider the overall context of the case, did consider all the circumstances, including those that the appellant characterizes in his factum as oppressive (how he was dressed, the fact he had not slept for 24 hours, and that he had not yet spoken to his lawyer). Ultimately, the trial judge concluded, based on the evidence of the investigating officer and the appellant himself, that when the investigating officer arrived at the station and told the appellant that his lawyer had not yet returned the phone call that had been placed by the arresting officer, the appellant asked to speak to her about the case and said he did not want to wait for counsel, and that he had been given the choice to speak with her. Primary and secondary cautions were administered at the outset of the police interview, and the appellant again declined to wait for his lawyer or to speak with duty counsel. The trial judge accepted the officer’s evidence that the appellant wanted to speak to her and did so willingly. He concluded that the appellant’s will was not overborne by the inducement (which was the focus of the appellant’s position on the motion) and that he made the statement voluntarily.

[9] For these reasons the appeal was dismissed.

“S.E. Pepall J.A.”

“K. van Rensburg J.A.”

“David M. Paciocco J.A.”