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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate.

(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: 20231222 DOCKET: C67978

Doherty, Coroza and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

Johnathan Impey Appellant

Counsel: Howard L. Krongold and Keara Lundrigan, for the appellant Kevin Rawluk, for the respondent

Heard: December 13, 2023

On appeal from the conviction entered on November 30, 2018 by Justice Robyn M. Ryan Bell of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

[2] The appellant appeals his conviction for sexual assault.

[3] The appellant and the complainant were casual acquaintances. On the night of the alleged assault, the complainant went to see her on-again-off-again dating partner. She consumed a substantial amount of alcohol over the course of the night. At some time after midnight, she got into an argument with her partner and decided she wanted to go home, but did not have enough money to pay for a taxi.

[4] Coincidentally, the appellant texted the complainant while she was looking for someone to give her a ride home. The appellant offered to pay for a taxi for her to come to his home. When she arrived, he commiserated with her. At this point, the narratives of the complainant and appellant diverged.

[5] The appellant testified that he engaged in consensual sexual activity with the complainant. He fell asleep, and when he awoke, she was gone.

[6] The complainant testified that the appellant asked her if she wanted to have sex, but she said no. She fell asleep. She woke up to find the appellant having sex with her. The appellant got off her. She got up, put on her clothes, gathered her things, and left. The next morning, she reunited with her original partner, and reported having been sexually assaulted.

[7] The defence theory was that the complainant regretted having sex with the appellant and fabricated a story of an assault, rather than admitting to having consensual sex with another man. Crown counsel attacked this theory of fabrication in their closing submissions to the jury.

[8] After five days of trial and four days of deliberation, the jury convicted the appellant of sexual assault.

[9] The appellant raises two grounds of appeal. First, he alleges that the trial judge erred in responding to the jury’s request for “an expanded/better definition of reasonable doubt.” Second, he argues that the trial judge did not provide any instructions to the jury on how to properly deal with the complainant’s motivation to fabricate. We are not persuaded by either submission.

[10] On the third day of deliberations, the jury returned with the following question: Could we have an expanded/better definition of reasonable doubt?

[11] After consulting and seeking advice from the parties, the trial judge adopted their joint submission. Specifically, both parties asked the trial judge to advise the jury that there was no expanded definition of reasonable doubt, and to simply repeat her instructions on reasonable doubt from the written charge that she had provided the jury. The trial judge followed this approach.

[12] The appellant now argues that the trial judge should have tried to clarify the standard of proof because the question was a “plea for help” from a jury which was confused by the original instructions. Further, the appellant submits that the trial judge’s response dissuaded the jury from asking further questions or seeking clarification if they remained confused.

[13] We do not accept this submission. To begin, trial counsel raised no objection to the instruction after it was delivered – in fact, the trial judge did exactly what she asked her to do.

[14] Furthermore, it is not, as the appellant suggests, obvious that the jury was confused about the instructions in the written charge on reasonable doubt. The question asked for an “expanded/better” definition. Arguably, the jury was asking if something better was available. The trial judge responded there was nothing better and that the definition was found in the written charge. There is no dispute that the instruction on reasonable doubt in that charge was comprehensive and without error.

[15] Finally, we do not accept that the trial judge’s response closed the door to further questions from the jury. The jury had a copy of the written charge with them. The charge very clearly set out the procedure for the jury to ask questions. The trial judge on two occasions during her charge told the jury they could ask questions if they needed clarification. There is nothing in the answer provided to the jury that could possibly have dissuaded the jury from asking further questions.

[16] When it is clear from the record that a jury would have felt free to ask further questions, it is not an error for a trial judge to respond to a question about reasonable doubt by repeating their original instruction. This is especially true when defence counsel does not object or indeed actively supports this approach at trial: R. v. Dubros, 2023 ONCA 447, 167 O.R. (3d) 481, at paras. 53-56; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 97; R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540, at paras. 29-32.

[17] The appellant also argues that the trial judge erred in failing to instruct the jury about how to evaluate the complainant’s motive to fabricate. While the appellant acknowledges that the position of the defence at trial was that the complainant had a motive to fabricate, and it was open to the Crown to argue against the existence of this theory, the appellant submits that the jury could not find on the evidence that the Crown had proven an absence of motive to lie, and that the complainant should therefore be believed. The appellant suggests that the trial judge’s silence on these issues in her instructions constitutes misdirection.

[18] The appellant asserts, for the first time on appeal, that the charge should have contained the following instructions:

1. Because a person’s motives can sometimes be hidden, there is a difference between absence of apparent motive and proven absence of motive;
2. Although the defence had raised some possible motives for the complainant to fabricate her evidence, depending on their view of the evidence, it was open to the jury to find an absence of any apparent motive on the part of the complainant to fabricate;
3. Although absence of apparent motive to fabricate is a proper factor to consider in assessing the credibility of the complainant, it is but one of many factors to be considered; and
4. Whatever their view of the evidence relating to the complainant’s motive to fabricate, it was essential that the jury bear in mind that the accused has no obligation to prove a motive to fabricate and that the onus remains on the Crown throughout to prove guilt beyond a reasonable doubt: see R. v. L.L. 2009 ONCA 413, 96 O.R. (3d) 412, at para. 53; and R. v. J.H. 2020 ONCA 165, at paras. 148-49.

[19] We do not agree with this submission. Taking a functional approach to reviewing the charge, we are satisfied that there was no misdirection: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 57. The trial judge’s instructions about the assessment of evidence and the credibility of witnesses made it clear that a witness’ motive for testifying in a certain way was one of many factors which could be considered in assessing their credibility. The Crown’s reference in their closing to the lack of an apparent motive for the complainant to lie was a direct response to the appellant’s theory that the complainant fabricated her allegation. The trial judge did not say anything in her charge that would suggest that there was no evidence the complainant had a motive to fabricate.

[20] The parties did not ask the trial judge to delve into the challenging task of explaining to the jury the distinction between the absence of apparent motive and proven absence of motive. In the circumstances of this trial, and in particular in the absence of a request for a more specific instruction on motive to fabricate, the instruction that the jury could consider witnesses’ motives as one factor in assessing their credibility was sufficient.

[21] In sum, the issue of the complainant’s motive to lie, a factual question for the jury, was properly dealt with in the trial judge’s instructions: see generally R. v. MacKenzie, 2020 ONCA 646, at para. 35.

[22] For these reasons, the appeal is dismissed.

“Doherty J.A.”

“S. Coroza J.A.”

“J. Copeland J.A.”