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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2023-03-02 Docket: C69980

Between: His Majesty the King Respondent

And: Aamir Syed Appellant

Counsel: Mark Halfyard and Julia Kirby, for the appellant Jacob Millns, for the respondent

Heard: February 27, 2023

On appeal from the conviction entered by Justice Mark Moorcroft of the Ontario Court of Justice on November 24, 2020.

Reasons for Decision

[1] The appeal was dismissed with reasons to follow. These are the court’s reasons.

The trial judge’s reasons were not inadequate

[2] The appellant argues that the trial judge failed to deal with an expert’s toxicology report, given a material inconsistency in the complainant’s evidence concerning how much alcohol she had consumed. The defence position at trial was that the complainant was lying about how much she had drank in order to distance herself from consensual sex that she regretted, and that the toxicology report established that she was lying.

[3] We do not agree. The toxicology report spoke about the expected consequences of acute alcohol ingestion and was necessarily tentative. Dr. Juurlink noted that there was considerable uncertainty about the effects of blood alcohol given a variety of factors of which he was unaware. Among other things, the effects were dependent on an individual’s tolerance, which was related to their previous pattern of alcohol consumption. The trial judge accepted the evidence of a witness, C.W., who testified that it was not unusual for the complainant to drink as much as she said that she did on this occasion and found that the complainant did not lie about how much she had drank. This finding was open to the trial judge on the record before him and there is no basis to interfere with it. Although it would have been preferable if the trial judge had referred more specifically to the toxicology report, his finding cannot be impugned on this basis. His reasons were adequate in the circumstances.

The verdict was not reached through an illogical reasoning process

[4] The appellant argues that it was illogical to reject the exculpatory evidence of C.W. that the complainant told her she may have been “on top” for part of the sexual activity, while accepting C.W.’s evidence that the complainant left the party with non-matching footwear. We reject this argument. It is essentially an attack on the trial judge’s credibility findings, which are entitled to deference in this court. It was open to the trial judge to accept some, all, or none of a witness’s testimony. C.W. was certain about the footwear, whereas the evidence that the complainant may have been “on top” was uncertain at best, was denied by the complainant, and was not corroborated by other witnesses.

The trial judge did not misapprehend the evidence

[5] The appellant argues the trial judge misapprehended K.A.’s evidence about the nature of his relationship with the complainant in rejecting the submission that she had a motive to fabricate. We do not accept this argument. Although the trial judge did not accept that K.A. and the complainant were on a break and noted that “there might have been some obligation for her to say in advance if something physical was happening with someone else”, he found that the complainant’s acknowledgment of consensual kissing and oral sex with the appellant was inconsistent with the alleged motive to fabricate. In all of the circumstances, it was open to the trial judge to find that there was no evidentiary basis for the argument that the complainant had a motive to fabricate.

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

“Grant Huscroft J.A.”

“L. Sossin J.A.”

“J. George J.A.”