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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20231018 Docket: C70262

Before: Benotto, Roberts and Favreau JJ.A.

Between: His Majesty the King Respondent

and

Julien Jutras Appellant

Counsel: Ian B. Kasper and Nusra Khan, for the appellant Jacob Millns, for the respondent

Heard: October 5, 2023

On appeal from the conviction entered by Justice Rommel G. Masse of the Ontario Court of Justice on September 13, 2021.

Reasons for Decision

[1] Julien Jutras appeals his convictions for sexual assault and voyeurism. He seeks a new trial on the basis that the trial judge’s reasons were insufficient. In particular, he submits that the trial judge did not explain why he believed the complainant in the face of certain inconsistencies in her testimony and the alleged motive for her to fabricate evidence. The appellant says the trial judge’s conclusion that he believed the complainant – without addressing these issues – rendered the reasons insufficient.

[2] The charges against the appellant were brought forward after the complainant found photos of her 14-year-old daughter on the appellant’s phone. She copied the photos onto her own phone and took them to the police. [^1] The police subsequently seized from the appellant’s phone photos and videos of the complainant. The appellant was acquitted with respect to some of these photos and videos because the trial judge was not satisfied that they were taken surreptitiously. However, there were two images of the complainant’s genital region being touched by the appellant that led to the convictions. The trial judge observed that one of these photos was taken under the covers and the other was taken with a flash. They also matched the complainant’s description of two incidents when she became aware that the appellant was taking photos of her genitals without her knowledge. The trial judge was satisfied that these images were taken surreptitiously, and they formed the basis of the voyeurism conviction. The trial judge also relied on these photos for the sexual assault charge.

[3] When the complainant went to the police, she said that some of the photos of her were consensual. At trial, the complainant testified that she would not have consented to having the photos that were the subject matter of the trial taken. The defence argued that this represented a “revision of history” and should have been addressed by the trial judge.

[4] A review of the evidence discloses that the complainant was testifying about two different types of photos. She did take photos of herself in lingerie and send them to the appellant. These were the photos she was referring to when she said she consented. However, she said she did not consent to the sexual photos that were the subject matter of the trial, some of which were taken while she was asleep. The trial judge addresses these two types of photos:

[S]he acknowledged that there were times when photos were consensual, but this was at the beginning of the relationship, a long time ago. It is her evidence that she did not consent to, nor was she even aware, of the photos that are the subject matter of this trial.

[5] The appellant also argued at trial that the complainant was angry with him, and she therefore had a motive to fabricate her evidence. When the complainant found photos of her daughter on his phone, she texted him and said that she hated him. The trial judge acknowledged that she was angry, stating, “I understand why [she] was angered” when she found photos of her daughter on the appellant’s phone. We note that the defence theory that the complainant had a motive to fabricate was not put to her in cross-examination.

[6] With respect to the sexual assault conviction, the trial judge discussed two incidents where the complainant was roused from sleep by the accused touching her in a sexual manner. The trial judge accepted the complainant's testimony in this regard and held that the complainant could not have consented while unconscious. On this basis, the trial judge concluded that the appellant sexually assaulted the complainant.

[7] The trial judge’s reasons review the evidence and the law. The trial judge clearly accepted the complainant’s evidence that she did not consent to the surreptitiously taken photos. His findings as to the graphic contents of these photos and the secretive way they were taken explain his ultimate conclusions. He also noted that the complainant’s evidence was the only evidence on the issue of consent and concluded: “I see no reason to reject [the complainant’s] evidence…I accept it.”

[8] While it would have been better had the trial judge addressed the allegations of inconsistency and motive to fabricate, the reasons, read as a whole, in the context of the evidence and submissions, were not insufficient: see R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 108. The trial judge’s reasons clearly demonstrate that he accepted the complainant’s evidence that she was unaware of and did not consent to the two instances of photographing and the two instances of touching that the trial judge described in detail. A failure to explain the rejection of a submission does not make the reasons deficient if the reasons demonstrate the acceptance of contrary evidence: R. v. Wolynec, 2015 ONCA 656, 330 C.C.C. (3d) 541, at para. 60, citing R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 13. Here, the trial judge did not just accept the complainant’s evidence, but he also relied on the contents of the photos leading to the convictions as confirmatory evidence.

[9] The appeal is dismissed.

[10] We see no basis to amend the indictment as requested by the appellant.

“M.L. Benotto J.A.”

“L.B. Roberts J.A.”

“L. Favreau J.A.”

Footnotes

[^1]: The appellant was acquitted of voyeurism in relation to the photos of the daughter because the trial judge was not satisfied that the images were of a sexual nature.