Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2024-02-22 Docket: COA-22-CR-0417

Fairburn A.C.J.O., Doherty and Benotto JJ.A.

BETWEEN

His Majesty the King Respondent

and

Maurice Johnson Appellant

Counsel: Gabriel Gross-Stein, for the appellant Sunil Mathai, for the respondent

Heard: February 16, 2024

On appeal from the conviction entered by Justice Joseph B. Wilson of the Ontario Court of Justice, dated April 11, 2022, and the sentence imposed on June 27, 2022.

By the Court:

[1] The appellant was charged with kidnapping, forcible confinement, assault with a weapon, and sexual assault. The trial judge convicted the appellant of kidnapping and sexual assault and acquitted him on the assault with a weapon charge. The forcible confinement charge was stayed.

A. Background

[2] The appellant met the complainant and her sister in Thunder Bay. A year later, the appellant was in Thunder Bay looking for the complainant’s sister. He found the complainant instead. She agreed to go with him to buy drugs and look for her sister. The two used drugs in the appellant’s car, and the complainant blacked out. When she woke up, they were no longer in Thunder Bay. The complainant did not know where they were, but he kept driving away from Thunder Bay. They stopped in Algonquin Park, and ultimately ended in Barrie where they checked into a hotel. The journey took three days. Along the way the appellant gave the complainant drugs.

[3] When they got to the hotel room, the complainant testified that the appellant barricaded the door, became aggressive, and insisted that she should prostitute herself to pay him back for the drugs, or else he would go after her sister. She said that he then pushed her onto the bed and sexually assaulted her. She testified that she blacked out after the assault. When she awoke, the appellant was sleeping. She ran out of the hotel room in her bare feet and sought help.

[4] In finding the appellant guilty of kidnapping and sexual assault, the trial judge acknowledged that there were “glaring inconsistencies” in the complainant’s evidence but stated that they were “[f]or the most part, …. minor details in the total narrative.” Generally, the trial judge found her evidence to be “fair, balanced and candid” and that “she was striving to be truthful”.

[5] The appellant alleges that the trial judge erred by misapprehending the evidence, failing to address the inconsistencies in the complainant’s testimony and failing to properly take into account the evidence of consent by the complainant.

B. The alleged misapprehensions of the evidence

[6] The appellant alleges three misapprehensions of the evidence by the trial judge. In our view, for the following reasons, none amount to material misapprehensions of the evidence, or result in a miscarriage of justice.

[7] Assuming the trial judge misstated the evidence about the complainant’s consumption of food during the car trip south, that error could not possibly have impacted on the trial judge’s findings of fact that were germane to any of the counts. It was a matter of little or no consequence.

[8] The trial judge’s finding that the appellant knew the complainant was a “drug addict” was not based on any misapprehension of the evidence. It was open to the trial judge to draw that inference from the evidence. The conduct of the appellant virtually from the time he met the complainant supported the inference that he knew she was a regular drug user and that he purchased drugs for her as a means of holding control over her while taking her far from her home in Thunder Bay.

[9] Finally, it was not material to the reasoning of the trial judge whether the complainant or the appellant had actually purchased drugs at various times on the car trip south. On the evidence, both purchased drugs at different times. However, the appellant paid for all of the drugs and clearly controlled when and how the drugs would be purchased and used. It was that finding which was significant on the question of the appellant’s control over the complainant while she was in the vehicle.

C. Alleged Inconsistencies

[10] The appellant alleges that the complainant’s evidence contained several inconsistencies that should have created a reasonable doubt:

1. She had a few encounters with police throughout their long drive. Though she testified that she did not speak to police, a transcript of a conversation demonstrated that she had, and told police she was okay.
2. The complainant testified that she did not tell police what was going on during a traffic stop because the appellant had a large knife sitting beside him that he had shown her during the drive. However, no knife was recovered.
3. The complainant admitted that she could have left the appellant’s vehicle before they got to Barrie but did not.
4. The complainant had texted her sister without alerting her to the fact that she was in danger.

[11] Although characterized as “inconsistencies” we note that the complainant was not in fact inconsistent in her evidence. These issues all relate to the defence theory that the complainant was a willing participant in the journey. The appellant’s submission that the trial judge did not address these issues amounts to an allegation of insufficiency of reasons requiring a new trial.

[12] We do not agree.

[13] The evidence of the complainant’s participation at its highest does not negate the elements of unlawful confinement or kidnapping. As the trial judge found:

• Before they left Thunder Bay the two had consumed drugs that the appellant had bought.
• The complainant blacked out in the car and did not wake up until the complainant had driven them out of Thunder Bay.
• The appellant refused to tell her where they were going even though she repeatedly asked.
• The complainant asked to go back to Thunder Bay, but he continued to drive farther away.
• The complainant had no money, no personal effects and no identification.
• The complainant was afraid.
• Throughout the three-day trip, the complainant frequently got “dope sick” so the appellant would give her more drugs.

[14] On this basis, the trial judge concluded there was no willing participation in the trip and the elements of forceable confinement and kidnapping were satisfied.

D. The alleged error with respect to consent

[15] The final alleged error involves the issue of consent.

[16] The appellant contends that the complainant equivocated on whether she had not consented to the sexual activity in the hotel room and that the trial judge failed to come to grips with that equivocation.

[17] We disagree.

[18] While the complainant’s evidence in cross-examination could be characterized as somewhat unclear on this point, she was crystal clear in re-examination that she had not consented to the sexual activity. The trial judge clearly and properly stated the law on this point and came to the following conclusion:

When the circumstances here are considered in their entirety, I am satisfied that she did not consent to having intercourse with Mr. Johnson beyond a reasonable doubt. A drug addled frightening exhausting ordeal is not too strong a description of what Mr. Johnson had put C.M. through over the course of three days in the circumstances here. A prelude to romance it was not, and her description of how intercourse occurred is a classic example of one person having their way with another person in a completely unbalanced, one-sided situation.

[19] This conclusion was both legally and factually sound.

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

Released: February 22, 2024 “J.M.F.” “Fairburn A.C.J.O.” “ Doherty J.A.” “M.L. Benotto J.A.”