Statutory Publication Bans and Orders

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138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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: 2024-05-21 Docket: COA-23-CR-0471

Judges: Zarnett, Coroza and Monahan JJ.A.

Between: His Majesty the King, Respondent and G.C., Appellant

Counsel: Eric Granger, for the appellant Charmaine M. Wong, for the respondent

Heard: May 6, 2024

On appeal from the finding of guilt entered on February 22, 2023 by Justice Deborah A. Kinsella of the Ontario Court of Justice.

Reasons for Decision

[1] Following the appellant’s argument, we determined it was unnecessary to call upon the Crown to respond and we dismissed the appeal with reasons to follow. These are those reasons.

[2] The appellant was found guilty of sexual assault and assault. On appeal, the appellant seeks a new trial, alleging the trial judge committed a W.(D.) [1] error, and that she materially misapprehended evidence relating to an alleged motive of the complainant to fabricate.

[3] At the time of these offences, the appellant was sixteen years old, and the complainant was fourteen. They were friends from school.

[4] In the early hours of March 21, 2021, the appellant and complainant were in the appellant’s bedroom. The appellant was having a party and had been drinking alcohol. Others were present in the home when the complainant arrived between 2:00 and 2:30 a.m. She was sober. Later, after the appellant repeatedly pressured the complainant, the two engaged in consensual sexual intercourse. Her evidence at trial was that she eventually consented in response to his pressure, because she felt she had to “get it done and over with.” However, after about fifteen minutes of intercourse, the complainant changed her mind, saying “I’ve changed my mind. Can we stop?” The appellant did not listen. She stayed silent another ten minutes as sexual activity continued. She then repeatedly said she wanted to stop, which he ignored. He grabbed her ankle to prevent her from trying to stop him. The complainant also testified that at some point the appellant choked her so that she could not speak. She testified that the appellant stopped eventually, and the two fell asleep in the same bed.

[5] In the morning, the complainant awoke to the appellant touching her vagina underneath her underwear and persistently asking her for oral sex. She rolled over and looked at her phone rather than responding directly. Shortly after she left the appellant’s home, there was a short exchange of messages between the two on Snapchat. The complainant asked the appellant if he remembered anything from the night before, to which he replied, “LMAO not a lot”. She described how he had pulled her body toward him when she moved away in bed and how she had told him she was done with intercourse and said “no” to him. He replied he did not “really remember” that, suggested that the complainant should have punched him if he was behaving that way, and apologized twice. That day, she disclosed these incidents to her friend and soon after, to a school counsellor.

[6] The appellant testified at trial. The gist of his evidence was that the sexual contact that occurred was consensual. The trial judge rejected the appellant’s evidence, finding he was “trying to paint himself in the best possible light, and was greatly minimizing the amount of alcohol he had consumed that evening.” The trial judge noted that his own Snapchat messages confirm he remembered little from that night, giving her serious concern about the reliability of his evidence. She found the appellant’s credibility to be most undermined by his attempts to “explain away” each of the Snapchat messages the next day. She also found his credibility was undermined by his evidence about why he thought the complainant seemed nervous in the morning. The appellant indicated he thought she was nervous because she had left a feature active on her Snapchat application that allowed people to see that she had spent the night at his house. The trial judge found this not to be credible because multiple people had seen the complainant arrive at the house and there was nothing clandestine about their having spent the night together.

[7] By contrast, the trial judge found the complainant’s testimony to be credible and reliable. She noted that the complainant demonstrated a detailed memory of the evening. The trial judge concluded that consensual intercourse had become non-consensual, and the Crown had proven the offences of sexual assault and assault beyond a reasonable doubt.

[8] However, the trial judge found the appellant not guilty on the charge of choking the complainant during the sexual assault. Although she accepted that the appellant had placed his hand on her neck, the trial judge gave two reasons for acquitting the appellant of this charge. First, the complainant’s initial statement to police was “somewhat inconsistent” on whether the appellant used one or both hands while choking her. Second, although the complainant testified that the choking was prolonged and alarming, the complainant did not refer to choking in her Snapchat messages the morning after the incident. Accordingly, the trial judge was not satisfied that the Crown had proven beyond a reasonable doubt that choking took place in the manner described by the complainant at trial.

[9] The appellant’s primary argument on this appeal is that the trial judge erred by failing to provide an analysis under the third prong of W.(D.) . Specifically, the appellant contends that the trial judge failed to explain why the complainant’s credibility at large was not undermined by the complainant's evidence with respect to the choking allegation, and having rejected that evidence the trial judge erred by failing to consider whether, on the whole of the evidence, she was convinced of the appellant’s guilt beyond a reasonable doubt.

[10] We see no error. The fact that the trial judge found that the complainant’s evidence fell short to establish choking does not mean the complainant was not a credible witness in relation to the sexual assault. The trial judge explained why the evidence fell short on the choking count:

I have no doubt that [the appellant] put his hand on her neck. And have no trouble finding that this was yet another action on his part that made it clear to [the complainant] that he was going to continue regardless of her requests. However, I find that given the issues with her testimony on this point , I cannot fully reject his evidence that he did not choke her as he described – as she described, I’m sorry. [Emphasis added.]

[11] When read fairly and as a whole, it is evident that the trial judge’s doubt with respect to the complainant’s evidence about being choked did not impact on her credibility at large. It was open on this record for the trial judge to reach that conclusion. The trial judge was entitled to accept none, some or all of the complainant’s testimony. We agree with the Crown’s submission that the reasons reflect “an intention to assess the evidence of the complainant carefully” and do not reveal a W.(D.) error.

[12] Turning to the second issue raised on the appeal, the appellant contends that the trial judge failed to understand the significance of the appellant’s claim that the complainant’s nervousness the morning after the incident was not because she had been sexually assaulted but due to her discovery that her Snapchat locator had been turned on and her friends could see that she had spent the night with the appellant, and that this “provided a potentially powerful motive to fabricate a story” to “spin” the sexual encounter as non-consensual.

[13] The trial judge specifically considered and rejected this submission. The trial judge found there “was nothing clandestine or secretive about the fact that [the complainant and the appellant] had gotten together that evening, as [the complainant] was seen arriving at the party by several people”, and that it made no sense that her nervousness the morning after was due to discomfort that others on social media had known where she spent the evening. Again, these findings were open to the trial judge on the record before her. Moreover, while defence counsel suggested to the complainant that she had commented about her Snapchat locator having been left on and that she would have been embarrassed if people saw she had spent the night with the appellant, the complainant did not agree with these suggestions and defence counsel did not specifically assert that this revealed a motive to fabricate an allegation of sexual assault. In short, the submission that the complainant had a motive to fabricate because of embarrassment is speculative at best and we reject this argument.

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

“B. Zarnett J.A.” “S. Coroza J.A.” “P.J. Monahan J.A.”