WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.J.F., 2023 ONCA 20

DATE: 20230116

DOCKET: C69832

Lauwers, Huscroft and Miller JJ.A.

BETWEEN

His Majesty the King

Respondent

and

R.J.F.

Appellant

Justin Marchand, for the appellant

Avnee Paranjape, for the respondent

Heard: December 16, 2022

On appeal from the finding of guilt entered on March 13, 2020 by Justice Allen G. Letourneau of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant was found guilty of sexual assault of the complainant B.O. The appellant and the complainant were both 16 years old at the time of the offence. The appellant was sentenced to 180 days of secured custody, 90 days of community supervision and 18 months of probation.

[2] The appellant's position at trial was that the sexual encounter was consensual or, in the alternative, that he had an honest but mistaken belief in consent. The appellant did not testify. On the complainant's evidence, after engaging in some consensual kissing in the basement bedroom of the appellant's house, the complainant engaged consensually in oral sex with the appellant. The appellant then proposed vaginal intercourse. The complainant declined, explaining that she was a virgin and she was not ready. Following the oral sex, the complainant was lying on her back on the bed. The appellant put his penis towards her as if to engage in vaginal intercourse. The complainant said "no, I don't want to", to which the appellant responded that was fine with him. Nevertheless, the appellant unsuccessfully attempted vaginal intercourse with her at least six times. At least four of those times, the complainant told him no, very clearly. The complainant started dressing and got up to leave. The appellant persuaded her to return to the bed and they engaged in kissing again.

[3] The appellant once again attempted to put his penis in the complainant's vagina. She again said no and again explained that she was not ready to have intercourse. Nevertheless, the appellant continued to attempt vaginal intercourse. The complainant testified that at some point she stopped saying no because it was futile. She testified that her silence was not because she consented to what the appellant was doing. She did not.

[4] Despite vigorously and repeatedly thrusting his penis against the complainant's vagina, the appellant was still unable to penetrate her. He relented, and instead began digitally penetrating her vagina with two or three of his fingers. She asked him what he was doing and he replied, "I just want to pop that cherry".

[5] The complainant testified that although she did not consent to this, she was initially relieved that he had stopped trying to penetrate her with his penis. He continued aggressively and painfully, and she testified that it felt like he was punching her vagina. He then attempted to penetrate her with his penis again, before giving up and telling her to give him oral sex "until he could finish". She did. She spent the rest of the night sleeping in the bed next to the appellant.

[6] Two days later, the complainant went to a clinic. The medical examination report noted vaginal abrasions and bruising. She experienced vaginal pain and bleeding over several days.

[7] The complainant reported the incident to police over a year later, after hearing a presentation at school given by the father of a sexual assault victim.

[8] The appellant raises three grounds of appeal: (1) unreasonable verdict; (2) error in the trial judge's assessment of the defence of honest but mistaken belief in consent; and (3) misapprehension of the evidence.

[9] For the reasons that follow, we do not agree that the trial judge erred in any respect, and the appeal is dismissed.

[10] The basis of the unreasonable verdict argument is that the trial judge failed to adequately scrutinize the complainant's evidence, and failed to grapple with contradictory evidence from two other teenagers who were present that evening, S.R. and T.N.

[11] S.R. and T.N. were Crown witnesses, and the trial judge found their evidence to be of marginal relevance. Both gave evidence of their observations about the affectionate nature of the interactions between the appellant and the complainant prior to events in the bedroom. S.R. also testified that the complainant requested that the appellant, who was going to sleep on the couch, sleep with her instead. Because neither S.R. nor T.N. witnessed any of the interactions that took place inside the bedroom, the trial judge found their evidence largely irrelevant.

[12] The appellant, however, argues that the evidence of S.R. and T.N. about interactions before the bedroom incident was contradictory to B.O.'s evidence, and that this difference gave reason to doubt B.O.'s credibility. The trial judge erred, the appellant argues, in finding B.O. to be a credible witness in light of contradictions with S.R. and T.N.'s evidence.

[13] This ground of appeal fails. The trial judge made no error in finding S.R.'s and T.N.'s evidence on peripheral matters unhelpful to resolving the central question: did the appellant commit a sexual assault against the complainant? The interactions between the two prior to the events in the bedroom were not probative. Second, the appellant overstates the differences between the testimony of the complainant and S.R. and T.N. None of the statements made by the latter two witnesses on which the appellant relies were put to the complainant in either examination in chief or cross-examination. The highest the appellant can put things is that the complainant testified she was "shy" around the appellant, but her behaviour preceding the bedroom encounter suggest this self-perception was inaccurate. The trial judge did not err in finding that this did not undermine her credibility. Third, the trial judge was alive to differences between the testimony of the complainant and the testimonies of S.R. and T.N. He found the complainant to be credible and reliable notwithstanding these differences on collateral matters. His findings of credibility are entitled to deference.

[14] With respect to the trial judge's finding that there was no air of reality to the defence of honest but mistaken belief in consent, again, we see no error. There was no evidence that the appellant believed that the complainant was consenting to vaginal intercourse or digital penetration by the appellant, or that the appellant had made reasonable efforts to ascertain the complainant's consent. This is determinative of this ground: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 121.

[15] The argument that the trial judge misapprehended the evidence and, specifically, that he disregarded the evidence of S.R. and T.N. on the basis that the evidence was inadmissible absent an application under s. 276 of the Criminal Code, R.S.C., 1985, c. C-46, does not withstand a careful reading of the reasons. The evidence was before the trial judge and he adverted to it, but he did not find it persuasive. There was no misapprehension.

[16] The appeal is dismissed.

"P. Lauwers J.A."

"Grant Huscroft J.A."

"B.W. Miller J.A."