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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20231025 Docket: C70655

Roberts, Coroza and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

S.T. Appellant

Counsel: Mark C. Halfyard, for the appellant Manasvin Goswami, for the respondent

Heard: October 18, 2023

On appeal from the conviction entered by Justice Roger Chown of the Superior Court of Justice on February 17, 2022, with reasons reported at 2022 ONSC 1103.

Reasons for Decision

[1] The appellant was convicted of sexually assaulting the complainant. They did not know each other before the incident. The complainant’s intoxication caused her to confuse him with someone else. Both claimed to have no memory of the evening as a result of excessive alcohol consumption. The trial judge found that the appellant was “relatively sober” and that he lied about his level of intoxication. The trial judge accepted that the complainant was so intoxicated that she lacked the capacity to consent to sexual activity with the appellant and found that the appellant knew that she was incapable of consenting because of her intoxication. He sentenced the appellant to 28 months in custody.

[2] The appellant appeals only his conviction and raises two grounds of appeal:

i. The trial judge’s findings respecting the appellant’s sobriety were unreasonable and erroneous: the trial judge relied on incomplete and grainy video footage of the appellant’s attendance at a bar; his findings were made without expert evidence on the effects of alcohol impairment; and he applied uneven scrutiny in assessing the appellant’s sobriety and the complainant’s level of intoxication.

ii. The trial judge’s finding that the appellant’s temporary roommate was partial towards him was not borne out on the evidence and erroneously led him to reject this witness’ evidence where it assisted the defence.

[3] We are not persuaded that the trial judge made any material, reversible error.

[4] The trial judge’s determination that the appellant was not as intoxicated as he testified was grounded in the record. The observations set out in his reasons were within the purview of the trial judge and did not require expert evidence: Graat v. The Queen, [1982] 2 S.C.R. 819, at p. 838. Importantly, the appellant’s trial counsel did not submit that expert evidence was required and conceded that the trial judge could observe the bar’s video for the purpose of assessing how the appellant “was ambulating and conducting himself”. The trial judge’s assessment of the appellant’s level of sobriety is clearly reflected in the bar’s video. This determination was open to him to make.

[5] In any event, the trial judge did not depend solely on the video, but also based his conclusion that the appellant was not as intoxicated as he claimed on other evidence, including evidence of the police officer and the appellant’s roommate, who both interacted with the appellant shortly after the incident.

[6] Moreover, the trial judge’s overall assessment of the appellant’s lack of credibility did not rest entirely on the bar’s video and arose from other inconsistencies in the appellant’s statement to the police.

[7] Finally, we see no uneven scrutiny of the evidence in the trial judge’s assessment of the appellant’s and complainant’s sobriety. Indeed, the trial judge relied on the evidence of the appellant’s roommate as to the appellant’s and complainant’s relative levels of sobriety, and the roommate’s evidence of the complainant’s greater intoxication was amply supported by the evidence of other witnesses.

[8] We agree that the trial judge’s finding of partiality in the appellant’s roommate’s evidence is problematic as the parties were not given an opportunity to respond. Moreover, this finding was unnecessary because the trial judge did not entirely reject the roommate’s evidence.

[9] However, this finding was not material to the trial judge’s assessment of the whole of the evidence nor to the ultimate outcome of the trial. The trial judge based his finding of partiality on the relationship between the appellant and the roommate, who were co-workers and roommates at the time of the incident, and on the roommate’s initial evidence that the appellant and the complainant were equally “hammered”. The roommate subsequently adopted his police statement that the appellant appeared less intoxicated than the complainant and, although appearing like “a normal drunk”, the appellant was steady on his feet and physically supporting the complainant. The trial judge accepted the roommate’s adoption of his evidence and found that the appellant was “relatively sober”. Moreover, the trial judge’s reasonable doubt about the complainant’s ostensible consent arose from his acceptance of the roommate’s evidence. This finding on ostensible consent was favourable to the defence.

[10] While the trial judge should not have made a finding of partiality without providing the parties with an opportunity to respond to the issue, for the reasons we have expressed, this finding did not taint his assessment of the evidence or otherwise affect his reasoning process. It did not create any unfairness to the appellant or result in a miscarriage of justice.

[11] The appeal is therefore dismissed.

“L.B. Roberts J.A.”

“S. Coroza J.A.”

“P.J. Monahan J.A.”