WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. (2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community. (3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication. 111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction.

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: 2024-01-08 Docket: C70527

Judges: van Rensburg, Roberts and Favreau JJ.A.

Between:

His Majesty the King Appellant

and

T.L. Respondent

Counsel: Dena Bonnet, for the appellant Ryan Langevin, for the respondent

Heard: November 22, 2023

On appeal from the acquittal entered on March 9, 2022 by Justice Deborah A. Kinsella of the Ontario Court of Justice.

Reasons for Decision

[1] The Crown appeals T.L.’s acquittal for sexual assault of the complainant. Under s. 676(1)(a) of the Criminal Code , R.S.C. 1985, c. C-46, the Crown may only appeal an acquittal on a question of law alone. The Crown submits that the trial judge erred in law in her analysis.

[2] Both the complainant and T.L. were 17 at the time of the alleged offence and, with others, attended a party. Many of the partygoers drank excessively. The complainant felt unwell and went to an upstairs bedroom to lie down. T.L. and Kylie (who was over the age of 18 at that time) also went upstairs at some point. The three of them ended up on a bed together.

[3] There were two incidents that formed the basis for the sexual assault charge against T.L.

[4] The trial judge had a reasonable doubt about the first incident during which others from the party came upstairs and saw T.L., Kylie and the complainant on the bed. She could not determine beyond a reasonable doubt what happened between T.L. and the complainant, including whether the complainant was able to consent. One of the witnesses testified that she did not see anything with respect to T.L. that gave her concern. The complainant was not unconscious at that time but had no memory of the incident. T.L. denied committing any offence against the complainant. The trial judge concluded: “Was [the complainant] too intoxicated to consent to the actions that [the appellant] describes during the first incident? Maybe, perhaps even probably, but I cannot ignore the fact that [Ms. G.] had a doubt with her comment about [the complainant’s] actions being out of character.”

[5] The second incident occurred when, as the trial judge found, the complainant was “in no position to consent to anything due to her state of intoxication.” T.L. testified that Kylie returned to the bedroom, then T.L. asked the complainant if she was awake, but she did not respond. T.L. testified that Kylie indicated to T.L. that she wanted to engage in sexual activity and, though the complainant had still not responded, Kylie performed oral sex on the complainant while T.L. kissed the complainant on her forehead, stroked her arm, and masturbated beside her. The complainant testified that she then abruptly woke up, and that Kylie was performing oral sex on her and T.L. had his fingers in her vagina. She pulled up her clothes and ran downstairs upset and crying. T.L. and Kylie were told to leave. The police were called.

[6] The trial judge found that what T.L. did to the complainant in kissing her and touching her was “reprehensible and despicable”, but she could not find that his actions amounted to being a party to the sexual assault “clearly” being carried out by Kylie. She concluded that the complainant “was in no position to consent to anything due to her state of intoxication” and that “whatever happened in that bedroom was something she did not want.” However, she had a reasonable doubt as to whether T.L. penetrated the complainant’s vagina with his fingers as alleged because the room was dark and the complainant was extremely intoxicated. T.L. also denied touching the complainant in that way.

[7] The Crown submits that the trial judge committed legal error in three ways: (1) by failing to give legal effect to her findings that the complainant was incapable of consenting to any of the sexual acts that occurred, including, in particular, the sexual acts the respondent admitted in relation to the first incident; (2) by failing to consider and determine whether, on his own evidence, T.L.’s kissing and stroking of the complainant and masturbating beside her while she was incapable of consenting constituted a sexual assault; and (3) by failing to find that T.L. was a party to the sexual assault carried out by Kylie. The Crown asks this court to set aside the acquittal and substitute a finding of guilt for sexual assault. In the alternative, the Crown submits a new trial should be ordered.

[8] We see no error in the trial judge’s conclusions in relation to the first incident which were open to her on the record: based on her review of the evidence, she had a reasonable doubt about what happened during the first incident, including whether the complainant did not consent. Her finding that the complainant was incapable of consenting referred to the second incident.

[9] However, we agree that the trial judge fell into reversible legal error in her analysis with respect to the second incident.

[10] First, the trial judge failed to address whether T.L.’s kissing and touching of the complainant, while masturbating, constituted a sexual assault. While the primary focus of the trial Crown’s submissions was on the allegation of digital vaginal penetration and whether T.L. was a party to the sexual assault carried out by Kylie, the Crown also submitted that T.L.’s kissing and touching of the complainant, while she was in no position to consent, and while Kylie was sexually assaulting the complainant, constituted a sexual assault. This was evidence that, if accepted, could have supported a conviction for sexual assault of the complainant by T.L.: see e.g., R. v. Dinardo, 2014 ONCA 758, at paras. 4-5.

[11] Second, the trial judge failed to provide any reasons to explain her conclusion that T.L. was not a party to the sexual assault carried out by Kylie on the complainant. Her reasons, which indicate that she had a reasonable doubt as to whether T.L. was a party to the second incident notwithstanding his “reprehensible and despicable” actions, do not permit meaningful appellate review. The Crown argued at trial that T.L. was a co-perpetrator of the sexual assault under s. 21(1)(a) of the Criminal Code and that he aided and abetted Kylie to carry out her sexual assault of the complainant under s. 21(1)(b) and (c). To find T.L. liable as a party, the trial judge would have had to consider whether T.L. participated in the sexual assault or aided or abetted Kylie to carry out the sexual assault. There was evidence that, if accepted, could support a finding of party liability. For example, T.L. testified that he and Kylie wanted to continue their sexual activity and that Kylie wanted to involve the complainant. On his own evidence, T.L. lay beside the complainant, kissing her forehead, stroking her arm, and masturbating, while Kylie carried out her sexual assault of the complainant. This evidence, if accepted, could support the finding that T.L. was not a simple bystander but was actively participating in or encouraging and assisting Kylie to carry out the sexual assault of the complainant.

Disposition

[12] As a result of the trial judge’s errors, the acquittal must be set aside. We are not in a position, however, to make the necessary factual and credibility findings to support a finding of guilt. Accordingly, we order that the matter be remitted for a new trial.

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”

“L. Favreau J.A.”