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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20230503 Docket: C66951

Fairburn A.C.J.O., Lauwers and Miller JJ.A.

Between

His Majesty the King Respondent

and

A.M. Appellant

Counsel: Samantha Robinson, for the appellant Kevin Pitt, for the respondent

Heard: April 18, 2023

On appeal from the convictions entered by Justice Michelle O’Bonsawin of the Superior Court of Justice on April 1, 2019, and from the sentence imposed on May 28, 2019.

Reasons for Decision

[1] The appellant was convicted in a judge-alone trial of two counts of sexual assault and one count of choking. He received a three-year sentence for the first sexual assault and concurrent sentences of three years for the other sexual assault and one year for the choking assault. We dismissed the appeal with reasons to follow. These are the reasons.

[2] The appellant raises three grounds of appeal from conviction.

[3] First, the appellant argues that the trial judge erred in her assessment of the evidence said to corroborate the complainant’s version of events. He says this error had a material impact on the verdict because the complainant's evidence was lacking in sufficient detail about the nature and extent of the assaults. Therefore, standing on its own, the complainant’s evidence is said to be so weak that it could not have supported the findings of guilt. This is not so.

[4] As explained in the trial judge’s reasons, and as reflected in the complainant’s account of how she had been violated, the complainant’s evidence alone would have undoubtedly sustained the findings of guilt. But there was more.

[5] As reflected in the trial judge’s reasons, there was an audio recording of a conversation between the complainant, the appellant and a third party, where the appellant asked the complainant to recant or, as he put it, “lie” about what had occurred. Although unnecessary to support a conviction, the audio recording was clear and unassailable corroborative evidence. The trial judge well understood this evidence and came to findings of fact with the assistance of that evidence. It was open to her to do so.

[6] We also reject the appellant’s second suggestion that the trial judge conflated credibility and reliability. The reasons demonstrate that the trial judge was alive to the differences between these concepts. The reasons also demonstrate that, while from time-to-time the complainant’s evidence was unclear, the trial judge was satisfied with her credibility as a whole. We defer to that finding.

[7] The appellant also argues that the trial judge erred in law by relying on stereotypes when considering the complainant’s reticence in giving evidence. In particular, the trial judge found that the complainant's reluctance to testify, manifesting itself in less detailed evidence than may otherwise have been expected, was rooted in her culture.

[8] There is no need to address this issue as this comment played no material role in the decision. Even absent the comment, the trial judge’s reasons are clear that she was satisfied that the complainant was telling the truth.

[9] Finally, the appellant seeks leave to appeal sentence. There are no substantive legal errors alleged. We take the appellant’s position to be that the sentencing reasons are insufficient. We do not agree.

[10] The reasons clearly explain how the sentence was arrived upon. These were serious sexual assaults involving penetration and a breach of trust. The appellant also choked the complainant with a rope or wire used to hang laundry until she became unconscious. The appellant told the complainant to tell the police that she choked herself in an apparent suicide attempt, all of which was untrue. He also encouraged the complainant to lie to the police after charges were laid and to recant her police statement.

[11] The sentence is entirely fit. We defer to the trial judge’s exercise of discretion.

[12] The conviction appeal is dismissed. Leave to appeal sentence is granted. The sentence appeal is dismissed.

“Fairburn A.C.J.O.”

“P. Lauwers J.A.”

“B.W. Miller J.A.”