WARNING This appeal is subject to a mandatory publication ban under s. 278.9 of the Criminal Code. This section of the Criminal Code provides:
278.9 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:
(a) the contents of an application made under section 278.3;
(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or
(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.
(2) Every person who contravenes subsection (1) 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 20240417 * DOCKET: COA-23-CR-0116
Simmons, Hourigan and Paciocco JJ.A.
BETWEEN
His Majesty the King Respondent
and
J.D. Appellant
Counsel: Virgil Cojocaru, for the appellant Emily Bala, for the respondent
Heard: March 27, 2024
On appeal from the conviction entered by Justice Clayton Conlan of the Superior Court of Justice on November 17, 2022, with reasons reported at 2022 ONSC 6377, and the sentence imposed on February 13, 2023, with reasons reported at 2023 ONSC 1088.
REASONS FOR DECISION
A. Introduction
[1] The appellant was charged with sexually assaulting the complainant, his wife’s 18-year-old niece. The complainant testified that the appellant touched her breast for several minutes and digitally penetrated her vagina without her consent. The appellant’s position at trial was that the touching of the complainant’s breast was consensual, and the digital penetration did not occur.
[2] Pre-trial, the appellant asserted that his wife and a friend were persons in authority such that the Crown would have to prove the voluntariness of his statements to them. The trial judge directed a voir dire on this issue and ultimately rejected this defence theory.
[3] The appellant also brought two applications under s. 278 of the Criminal Code for disclosure of the complainant’s medical records. The complainant testified at the preliminary inquiry about prescribed medications she was taking, which she confirmed made her tired and stabilized her mood. The appellant claimed that her medical records could reveal other side effects of the medications and that disclosure was therefore necessary for him to make full answer and defence. Both applications were dismissed. The trial judge refused to permit counsel for the appellant to bring a third application.
[4] The appellant was found guilty of sexual assault and sentenced to three years’ imprisonment. The trial judge found that, on the appellant’s own evidence, he was guilty of sexual assault because he asked the complainant if she was uncomfortable when his hand was already on her breast. Further, even if her answer to this question could constitute consent to the appellant continuing to touch the complainant’s breast, such consent was vitiated by s. 273.1(2)(c) of the Criminal Code, as he was in a position of trust, power or authority. The trial judge also rejected the appellant’s testimony that he did not digitally penetrate the complainant's vagina. He accepted the evidence of the complaint, finding that she was unshaken on the core of what happened and that the few inconsistencies in her evidence were on peripheral matters. Ultimately, on all of the evidence, the trial judge was satisfied beyond a reasonable doubt that the appellant was guilty of sexual assault.
[5] The appellant raises multiple grounds of appeal on his conviction appeal, including uneven scrutiny of the Crown witnesses as compared to the appellant, violation of the principles of R. v. W.(D.), [1991] 1 S.C.R. 742, an unreasonable verdict, failure to grant his s. 278 applications, and a reasonable apprehension of bias on the part of the trial judge. In addition, on his application for leave to appeal sentence, the appellant submits that the trial judge erred regarding the immigration consequences of his sentence.
[6] The panel called on the Crown to respond to only two issues: the allegation of reasonable apprehension of bias and a component of the unreasonable verdict ground of appeal regarding the use of evidence from the voluntariness voir dire. After the oral hearing, we dismissed the appeal for reasons to follow. These are our reasons.
B. ANALYSIS
(1) Reasonable Apprehension of Bias
[7] The appellant points to several interactions with the trial judge, submitting that they give rise to a reasonable apprehension of bias cumulatively [1]. We disagree.
[8] The exchanges complained about include interventions by the trial judge, a comment about timing, and an exchange regarding an indulgence. In our view, these exchanges were not atypical of the usual dialogue between counsel and a trial judge during the course of a trial.
[9] Further, the statements complained of must be considered in the context of the trial as a whole. There were instances on the record where the trial judge attempted to assist defence counsel and was complimentary of his performance. From that perspective, no reasonable observer could conclude that the trial judge would not decide matters fairly.
(2) Voir Dire Testimony
[10] The appellant elected to testify on the voluntariness voir dire. In cross-examination, he gave evidence regarding statements he made to his wife in support of his position that he spoke to her to have her influence the complainant not to go to the police. The appellant submits that the Crown’s cross-examination went beyond the scope of what was necessary to determine the issue on the voir dire and constituted unfair questioning. On this basis, he submits that the Crown impermissibly used the voir dire evidence at trial for impeachment purposes.
[11] This submission does not persuade us. The context of the impugned voir dire testimony is as follows. During the appellant’s cross-examination, the Crown asked whether the appellant had advised his wife that the complainant told him that she wanted to engage in sexual relations. The appellant responded that the complainant consented “in words”. He clarified that she did so when he asked if she was uncomfortable, and she replied that she was not. The Crown then asked whether this exchange occurred while he was touching the complainant’s stomach, which is what his wife told the police the appellant had told her. In response to that question, the appellant testified, “My hand was on her breast and – for a brief moment, and I took it off – I took my hand off and then I asked her if I was make – if I made her uncomfortable and she answered, no.”
[12] This questioning did not exceed the scope of the voir dire. The appellant was asked what he told his wife, which was relevant to the appellant’s contention that he made the statement to his wife so she would influence the complainant not to go to the police. In response to that question, the appellant raised the details of the sexual conduct. His defence counsel did not object to this questioning, which we view as a tactical choice to prioritize obtaining a ruling that the statement to the appellant’s wife was not voluntary.
[13] In addition, there was little or no prejudice to the appellant in the Crown’s cross-examination at trial. The Crown used the voir dire evidence to establish that the appellant had been inconsistent regarding when he asked the complainant whether she felt uncomfortable. At trial, the appellant resiled from his testimony that he had removed his hand from the complainant’s breast when he asked the question and insisted that his hand was on her breast when he inquired whether she was uncomfortable. In either case, the appellant asked for permission after engaging in sexual contact.
(3) Other Grounds on Conviction Appeal
[14] We see no merit in the remaining grounds of appeal asserted on the conviction appeal. For example, it is difficult to conceive of how a conviction for sexual assault can be unreasonable in circumstances where an accused admitted that he engaged in sexual contact before obtaining permission from the complainant. We also reject the appellant’s claims that the trial judge misapprehended the evidence in any material way.
[15] The complaints about uneven scrutiny and violation of W.(D.) principles are thinly veiled requests to retry the case. There was no uneven scrutiny; the trial judge carefully considered the evidence, including the competing narratives regarding what happened between the appellant and the complainant. Further, the trial judge was alive to the W.(D.) principles and applied them correctly.
[16] We agree with the trial judge’s ruling regarding the first s. 278 application. The appellant failed to adduce any case specific evidence to show that the records relating to her mental health issues and medication would likely be relevant to the complainant’s reliability as a witness. He was engaged in a fishing expedition, relying exclusively on the impermissible stereotype that those having or being medicated for mental illness are likely to be unreliable witnesses. The trial judge was also correct in summarily rejecting the second application, which was an attempt to reargue the initial application in circumstances where there had been no material change. Finally, the trial judge reasonably refused to permit the appellant to bring a third s. 278 application on the same facts.
(4) Application for Leave to Appeal Sentence
[17] The Crown sought a sentence of three and a half years’ custody, while defence counsel argued for a conditional sentence of 18 months to two years less a day. The trial judge did not accede to the defence’s request for a conditional sentence. He found there were many aggravating factors, including that the appellant committed a gross abuse of trust, the sexual assault was not momentary, and the digital penetration began while the complainant was asleep. The trial judge imposed a sentence of three years’ imprisonment.
[18] A single ground of appeal is asserted in support of the application for leave to appeal sentence. The appellant, a landed immigrant, submits that the trial judge erred in his understanding of the potential immigration consequences of his sentence. Specifically, the trial judge erred in observing that under s. 68(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, a removal order could be stayed where a landed immigrant has been sentenced to six months’ imprisonment or more.
[19] It is uncontested that the trial judge was incorrect in his observation that there was a potential for a stay of the removal order under s. 68(1). However, this error had no impact on the sentence imposed. The appellant would have had to receive a sentence of less than six months imprisonment or a conditional sentence to avoid the immigration consequences of his conviction.
[20] We see no error in the trial judge’s rejection of a conditional sentence or his imposition of a sentence of three years imprisonment. Absent some highly mitigating factor – which was not present in this case – the forced penetration of another person will typically result in a sentence of at least three years imprisonment: R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 77. It is impermissible to impose unfit sentences to avoid statutory immigration consequences: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 14-16.
C. disposition
[21] For the foregoing reasons, the conviction appeal was dismissed. Leave to appeal sentence was granted, but the sentence appeal was dismissed.
“Janet Simmons J.A”
“C.W. Hourigan J.A.”
“David M. Paciocco J.A.”
Notes
- These reasons were released only to the parties on April 17, 2024 in order to allow submissions as to whether the reasons should be published, with or without redactions, in light of the publication ban under s. 278.9 of the Criminal Code, R.S.C. 1985, c. C-46. The respondent, after consulting with the complainant, requested the court publish its full reasons. The appellant took no position. After considering the submissions received, we have determined that it is in the interests of justice for this court to exercise its inherent jurisdiction and publish these reasons without redaction: R. v. N.H., 2021 ONCA 636, 158 O.R. (3d) 294.
[1] To support this ground of appeal, the appellant brought a motion to introduce fresh evidence consisting of the digital recordings of trial proceedings on three dates. We admitted the fresh evidence as it was tendered for the purpose of challenging the trial process: R. v. Joanisse, [1995] O.J. No. 2883, at para. 17.
