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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

DATE: 20230509 DOCKET: C68796

Huscroft, Harvison Young and Thorburn JJ.A.

BETWEEN

His Majesty the King Respondent

and

Sean Hirnam Appellant

Counsel: Lindsay Board, for the appellant Baaba Forson, for the respondent

Heard: May 4, 2023

On appeal from the conviction entered on February 13, 2020 by Justice Nancy L. Dennison of the Superior Court of Justice, with reasons reported at 2020 ONSC 742.

Reasons for Decision

[1] The appellant was convicted of one count of sexual assault. In this appeal, he raises three arguments which, in his submission, cumulatively constitute an error that justifies and requires the intervention of this court. At the hearing, the parties were advised that this appeal was dismissed with reasons to follow. These are our reasons.

[2] The factual background may be briefly summarized. At the time of the incident in issue, the appellant was living in the basement of his mother’s home. He and the complainant had known each other in high school. They had reconnected and she had visited him at the home on a number of occasions over roughly a month.

[3] The complainant’s evidence, which the trial judge accepted, was that on the evening in question, the appellant was angry because the complainant was planning to go out the next night to celebrate her birthday with friends, and that he threw her on the bed and assaulted her from behind while holding her down with one hand and pulling her pants down with the other. The appellant’s evidence was very different. He testified that the sex was consensual and denied that he was angry.

[4] First, the appellant argues that the trial judge applied an uneven standard of scrutiny as between the defence and Crown evidence. While acknowledging that this argument can succeed only in exceptional circumstances, he submits that this is such an exceptional case. The central example of uneven scrutiny relied on by the appellant rests on the trial judge’s treatment of the complainant and the appellant’s conflicting evidence regarding the sexual incident. The complainant alleged that the appellant held her down with one hand and pulled her pants down with the other. The appellant testified that he had injured his arm shortly before the incident and so couldn’t possibly have done this. His version was that the sexual activity on the evening in question had been entirely consensual. The trial judge considered and rejected the appellant’s version of events.

[5] In our view, the trial judge properly considered the evidence before her. She found that the appellant had exaggerated his injury. This finding was well supported in the record before her. For example, by the date of this incident, the appellant acknowledged that he was able to dress himself using both hands and that he was no longer wearing a sling. In addition, while he stated that he had suffered a ‘muscle tear’, the hospital record reported tendonitis.

[6] Nor did the trial judge fail to consider the corroborative evidence led by the appellant. Rather, she considered and rejected it. The trial judge considered and rejected the appellant’s mother’s evidence that she had seen the complainant kiss the appellant affectionately as she was leaving the home. She held that if the mother could not see the complainant’s face, the trial judge did “not understand how she could see them kiss each other”.

[7] In addition, we do not agree with the appellant that the trial judge “forgave” significant inconsistencies in the complainant’s evidence. Rather, she found that those inconsistencies were minor and thus did not affect her overall assessment of the complainant’s credibility. It was open to her to reach this conclusion on the evidence before her. She concluded that the complainant’s evidence was generally credible, reliable and persuasive, and ultimately accepted it. She rejected the appellant’s version of events, found that the defence evidence did not leave her with a reasonable doubt, and concluded that, on the basis of all of the evidence that she did accept, the Crown had met its burden of establishing proof beyond a reasonable doubt: R. v. W. (D.), [1991] 1 S.C.R. 742.

[8] The appellant’s second ground of appeal is that the trial judge erred in relying on R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69, because J.J.R.D was of no application to this case. We see no merit in this argument because the trial judge, while citing the decision, did not rely on it in any material way. The citation is no more than a passing reference. There is no merit in this ground of appeal.

[9] Finally, we see no merit in the argument that the trial judge erred in applying the test for communicated consent. The trial judge found that, even if she had been prepared to accept the appellant’s evidence, she was still satisfied beyond a reasonable doubt that there was no communicated consent. This was based on her finding that the complainant’s conduct in pulling her pants down was ambiguous conduct in all the circumstances: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras 86, 91. This was the trial judge’s call to make, and there is no basis to interfere with it on appeal.

[10] The appeal is dismissed.

“Grant Huscroft J.A.”

“A. Harvison Young J.A.”

“Thorburn J.A.”