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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

DATE: 20221118 DOCKET: C69591

Lauwers, Huscroft and Coroza JJ.A.

Parties

BETWEEN

His Majesty the King Respondent

and

Kyle Mainville Appellant

Counsel

Jon Doody and Jonathan Nadler, for the appellant Jacob Millns, for the respondent

Heard: November 14, 2022

On appeal from the conviction entered on April 12, 2021, by Justice Kevin B. Phillips of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] At the conclusion of the appellant’s oral argument, we dismissed the appeal with reasons to follow. We now provide those reasons.

[2] After a trial, the appellant was convicted of a single count of sexual assault.

[3] At the time of the incident, the complainant was living in a townhome near her university. The incident occurred during a Halloween party. At some point during the party, the appellant and the complainant were seated on a couch in the basement alone.

[4] The complainant testified that after engaging in some brief consensual kissing, the appellant quickly became sexually aggressive with her, removed her clothing, and had intercourse with her. The assault ended when the appellant ejaculated on the complainant’s back. She then fled the basement, barely clothed, emotionally distraught, and reported the assault to her roommate, who was upstairs in her own room.

[5] The roommate testified that after the complainant reported to her what had happened, she went downstairs to confront the appellant at which point he told the roommate that the complainant had performed oral sex on him and left.

[6] The appellant testified that the complainant was a willing participant in the sexual activity that included oral sex and intercourse.

[7] The appellant raises several arguments which can be summarized as: the trial judge having provided insufficient reasons, unevenly scrutinizing the Crown and defence evidence, and erroneously finding that specific evidence confirmed the complainant’s account of events.

[8] First, the appellant argues that the reasons of the trial judge were insufficient. We disagree. It is clear from his reasons, read in context and as a whole, why he rejected the appellant’s evidence and accepted the complainant’s evidence about the sexual assault. In short, the trial judge rejected the evidence of the appellant because it was “something of a moving target”. While he found that there were concerns about the complainant’s reliability, he looked to other pieces of evidence that could confirm her evidence on the issue of consent. These other pieces of evidence were provided by the roommate in her testimony.

[9] Second, the appellant argues that the trial judge scrutinized the evidence unevenly. We do not accept this submission. In our view, the trial judge did not apply different standards to the assessment of the complainant and the appellant’s evidence. Instead, he scrutinized both accounts provided by the parties carefully. Indeed, his assessment of the evidence favoured the appellant because, as noted above, he concluded that he must proceed with caution regarding the complainant’s evidence since certain aspects of her evidence were not reliable. As noted above, the trial judge then insisted on confirmatory evidence on the issue of consent from other pieces of evidence.

[10] Finally, the appellant argues that the trial judge erroneously concluded that the statement made by the appellant to the roommate when first confronted with the allegation, and the complainant’s demeanour when she left the basement corroborated the complainant’s testimony regarding consent.

[11] While we do not necessarily agree with the trial judge’s finding that the appellant’s failure to disclose intercourse to the roommate corroborated the complainant’s evidence of non-consent, in our view, this is not fatal because the trial judge also relied on the roommate’s observations of the complainant’s demeanour when she ran upstairs after the sexual activity. He described the complainant’s demeanour as “near hysteria”. We also note that the trial judge assessed, but rejected the argument made by defence counsel that the complainant could have been play acting or expressing regret at consensual sexual activity. It was open to the trial judge to find that the level of upset observed by the roommate confirmed that the complainant was not consenting.

[12] For these reasons, the appeal is dismissed.

“P. Lauwers J.A.”

“Grant Huscroft J.A.”

“S. Coroza J.A.”