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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20221201 Docket: C70006

Judges: Lauwers, Paciocco and Zarnett JJ.A.

Between:

His Majesty the King Respondent

and

W.R. Appellant

Counsel: Michael Lacy and Alexa Banister-Thompson, for the appellant Grace Choi, for the respondent

Heard: November 24, 2022

On appeal from the conviction entered on February 5, 2021 by Justice Patricia C. Hennessy of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] There was sexual intercourse between the appellant and the complainant on the first occasion that they met. The issue was whether the complainant consented.

[2] The complainant testified that she did not consent. After she fell asleep on a couch at the appellant’s residence, the appellant had vaginal intercourse with her. During the sexual assault, she recalls feeling unwell, crying, and falling in and out consciousness. The trial judge believed her. On the appellant's testimony, the complainant was sexually aggressive and, in this way, signaled her consent, consistent with R. v. Barton, 2019 SCC 33, [2019] 2 SCR 579, at para. 90. The trial judge rejected this evidence.

[3] The appellant takes a granular approach to the trial judge’s reasoning and is hypercritical about several comments in the reasons. Even if some of those criticisms could be separately valid, which we do not accept, they would not undermine the chain of reasoning laid out by the trial judge.

[4] According to the complainant, whose testimony on this point was admitted to by the appellant, she had earlier rejected the appellant’s request to kiss her.

[5] At para. 36 of the reasons, the trial judge said:

In cross-examination, the accused took great pains to insist that he did not get upset when the complainant denied his offer of a kiss. He insisted that he totally accepted her wishes and then denied a few times that he had wanted a different response. This was the turning point in the evening, but the accused had a difficult time admitting that he did not get the answer he wanted. Ultimately the accused accepted the proposition that the complainant’s rejection to his sexual advances was not the answer he wanted. In my view, the accused was prepared to give an implausible answer because he hoped that this answer would better fit his account. These answers had a negative effect on his credibility.

[6] The basic dynamic in the trial is set out in para. 36 of the reasons, although not only there. The appellant wanted sex. The complainant did not. The two versions of events are deeply incompatible. The trial judge believed the complainant, not the appellant.

[7] The linchpin for the trial judge’s credibility finding is the plausibility of each incompatible version of events. The trial judge rooted her finding that the complainant did not consent in the implausibility of the appellant’s account of the complainant’s sexual aggressivity and in the plausibility of the complainant’s account of her physical state during the evening, and the next morning as independently attested to by medical staff. The trial judge noted, at para. 65:

Apart from the evidence on the state of mind of the complainant when she was conscious, there is also the evidence, denied by the accused, of the complainant’s physical state. I accept that the complainant became very unwell after consuming the second glass of wine. She testified that she suffered from a headache and dizziness and was nauseous. This is consistent with how she presented to the ambulance attendants and the nurse at the hospital, where she was administered anti-nausea medication.

[8] The assessment of credibility is uniquely in the trial judge’s domain. The trial judge’s reasons for her credibility finding are adequate because they are intelligible and coherent, and are based on the totality of the evidence.

[9] The appeal is dismissed.

“P. Lauwers J.A.”

“David M. Paciocco J.A.”

“B. Zarnett J.A.”