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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20240524 DOCKET: C69887

Brown, Coroza and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

O.I. Appellant

Counsel: Marianne Salih and Isaac Thompson, for the appellant Kevin Rawluk, for the respondent

Heard: in writing

On appeal from the convictions entered on February 12, 2021 by Justice Jennifer Woollcombe of the Superior Court of Justice, with reasons reported at 2021 ONSC 1130.

Reasons for Decision

Overview

[1] The appellant appeals from his convictions on four counts of sexual assault, one count of assault, and one count of forcible confinement. The charges stemmed from three encounters in early November 2018 between the appellant and the complainant, D.H., during their short relationship. The appellant was sentenced to seven years in prison.

[2] The evidence regarding the encounters between the appellant and complainant is set out in detail in the trial judge’s reasons: 2021 ONSC 1130. There is no need to repeat it. The complainant testified at trial; the defence called no evidence.

[3] The appellant submits his conviction is tainted by two errors committed by the trial judge: (i) she relied on factors that ought to have detracted from the complainant’s credibility and reliability – memory gaps, acknowledgement of inconsistences with prior statements, and lack of denigration of the appellant – but instead treated them as enhancing; and (ii) she materially misapprehended the evidence. The appellant contends those errors merit setting aside his convictions and ordering a new trial.

[4] We disagree.

Analysis

First ground of appeal: The trial judge’s treatment of inconsistencies in the complainant’s evidence.

[5] The trial judge set out the complainant’s evidence in considerable detail. She accepted that “there were numerous areas of inconsistency highlighted during the complainant’s cross-examination”. She proceeded to address the most significant ones. The trial judge found that, in respect of some inconsistencies, the complainant provided explanations that were “rational, logical and made sense”: at paras. 105 and 133. In respect of other inconsistences, the trial judge gave reasons why she did not consider them to be significant or relevant to the issues before the court: see, for example, at paras. 111, 124, 129, and 137.

[6] As well, the trial judge clearly explained for each count why, notwithstanding certain inconsistencies in the complainant’s evidence, she concluded that the Crown had established beyond a reasonable doubt that the complainant had not consented. For example, in respect of Count 1, the sexual assault at Loafer’s Lake, the trial judge stated, at paras. 114-15:

Having considered the entirety of the complainant’s evidence, it seems to me from that it is possible that she consented to the first act of sexual intercourse as she ultimately agreed that she did not remember if she had. I could not tell if this was because she had been worn down by the cross-examination or genuinely did not remember. I cannot be sure that there was no consent from her to that first act.

However, I find that the evidence is irrefutable that the complainant did not consent to the second act. She said no, she told the accused to stop, he did not do so and he engaged in non-consensual sexual intercourse with her knowing that she was not consenting. I accept her evidence that he apologized after.

[7] In sum, the trial judge did what a trial judge is supposed to do in her reasons: grapple with the difficulties presented by the evidence of a witness; determine the impact, if any, of those difficulties on the credibility and reliability of the witness; and explain the reasons for that determination. In these circumstances, the trial judge’s credibility findings are owed deference: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 81-82. Accordingly, we are not persuaded by this ground of appeal.

Second ground of appeal: Misapprehension of the evidence

[8] The appellant’s second ground of appeal contends the trial judge misapprehended the significance of inconsistent and unreliable evidence the complainant gave about the events following the visit to Tropical Nights nightclub. As we read the appellant’s submissions, they are simply a variation on his first ground of appeal and are disposed of on the same basis.

Disposition

[9] For the reasons set forth above, the appeal is dismissed.

“David Brown J.A.”

“S. Coroza J.A.”

“J. George J.A.”