WARNING The President of the panel hearing the appeal directs that the following should be attached to this file:
This appeal is subject to an order prohibiting the publication, broadcast or transmission of any information about or reference to the nature of sexual activity of the complainant which is at issue in this proceeding, other than that which forms the subject-matter of the charge.
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.
Corrected decision: The text of the original judgment was corrected on June 13, 2024, and the description of the corrections is appended.
COURT OF APPEAL FOR ONTARIO
DATE: 20240612 DOCKET: COA-22-CR-0307 and COA-23-CR-0153 Roberts, Monahan and Dawe JJ.A.
BETWEEN
His Majesty the King Respondent/Appellant
and
E.N. Appellant/Respondent
Counsel: Eric Granger, for the appellant (COA-22-CR-0307)/respondent (COA-23-CR-0153), E.N. Jacob Millns, for the respondent (COA-22-CR-0307)/appellant (COA-23-CR-0153), His Majesty the King
Heard and released orally: June 10, 2024
On appeal from the conviction entered on July 18, 2022, and the sentence imposed on January 12, 2023 by Justice Norman D. Boxall of the Ontario Court of Justice.
REASONS FOR DECISION
[1] The appellant was convicted of sexually assaulting the complainant in her home. The assault involved forced vaginal intercourse and attempted anal intercourse. The complainant’s evidence was that she had expressed her objection, both verbally and physically, but that the appellant ignored her protestations. The appellant appeals his conviction, while the Crown appeals the sentence of two years less a day, plus three years of probation, imposed by the trial judge.
Conviction Appeal
[2] The appellant argues that the trial judge erred in dismissing his s. 276 application, in which he sought to adduce evidence of a prior incident of sexual activity with the complainant. The appellant also argues that the trial judge erred in his assessment of his evidence and that of the complainant.
[3] The trial judge dismissed the s. 276 application and, in the trial proper, rejected the evidence of the appellant, found it did not raise a reasonable doubt, and accepted the evidence of the complainant, despite certain inconsistencies in her evidence. On this basis he convicted the appellant.
[4] The appellant submits that the trial judge erred on the s. 276 application by taking too narrow a view of the potential relevance of the prior incident of sexual activity, and that his findings on credibility and reliability in the trial proper relied on ungrounded assumptions and failed to take account of material inconsistencies in the complainant’s evidence. Specifically, the appellant argues that the trial judge failed to explain why the inconsistency between the complainant’s evidence and the evidence of her friend regarding a blanket did not affect the reliability of her evidence.
[5] We do not accede to these arguments. We see no error. The appellant sought to have the prior sexual activity evidence admitted to support his position that the complainant consented non-verbally to the sexual activity during the incident in question. During his colloquy with counsel during the s. 276 application hearing, the trial judge expressly recognized that consent can be communicated non-verbally.
[6] We agree with the trial judge that, given the live issues in the case, the prior encounter was irrelevant. It was factually distinct and occurred months before the encounter that gave rise to the conviction. Without engaging the twin myths, there was nothing in the prior encounter that could support the appellant’s defence that he honestly believed that the complainant was expressing non-verbal consent by way of her conduct. Moreover, the trial judge had taken off the table any basis that could render the prior encounter relevant, such as the Crown taking the position that it was implausible that the complainant would have consented to a sexual encounter with the appellant, whom she had met only twice.
[7] As for the trial judge’s assessments of the appellant and complainant’s evidence, these are entitled to deference and the appellant has not demonstrated that the trial judge committed a palpable and overriding error when assessing credibility and reliability.
[8] In particular, we find that the trial judge did not rely on assumptions that went “beyond the bounds of what common sense and the judicial function support”: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 95. The trial judge’s finding that the appellant’s claimed lack of memory of the incident in question gave rise to concerns about his reliability and credibility was one that was open to him to draw in the circumstances, where there was no dispute that the incident ended badly with the complainant upset.
[9] Nor was there any reversible error in the trial judge’s treatment of acknowledged inconsistencies in the complainant’s evidence. He assessed them in the context of the totality of the evidence and explained why they did not affect his acceptance of the complainant’s evidence on material points, or leave him with a reasonable doubt. With respect to the particular example of the blanket highlighted by the appellant, it is clear from the trial judge’s reasons that he assessed this inconsistency in the context of the evidence as whole and concluded, as was open to him to do, that it was a minor inconsistency with no material impact on his assessment of the complainant’s evidence.
[10] Accordingly, we dismiss the conviction appeal.
Sentence Appeal
[11] The Crown appeals the sentence of two years less a day with three years of probation, arguing that the trial judge made reversible errors in principle resulting in a demonstrably unfit sentence. In particular, the Crown focuses on the submission that the trial judge failed to consider materially aggravating factors and gave inappropriate weight to the mitigating factors in this case.
[12] We are not persuaded that the trial judge made any reviewable error or that the sentence imposed is demonstrably unfit.
[13] The trial judge properly instructed himself and applied the appropriate sentencing principles in this case. In particular, while he considered the principles of restraint and rehabilitation, the trial judge stated that the principles of denunciation and deterrence were paramount.
[14] With respect to the trial judge’s weighing of the relevant mitigating and aggravating factors, on appellate review, we are mindful of the Supreme Court’s instructions in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 26, citing R. v. McKnight, 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35: “The weighing or balancing of factors can form an error in principle ‘[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably’”. The Court goes on to say that even if the trial judge commits such an error in principle, “an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence”.
[15] When the trial judge’s sentencing reasons are looked at in their entirety, we disagree that there was such an error in the trial judge’s consideration of the mitigating and aggravating factors.
[16] First, there was no dispute about what the aggravating and mitigating factors were in this case.
[17] Further, the trial judge expressly adverted to the most significant aggravating factors in his reasons, namely, the fact that this was a penetrative sexual assault that caused significant harm to the victim. In his brief oral reasons, he was not required to catalogue the other undisputed aggravating factors that had been referred to in submissions.
[18] We similarly see no error in the trial judge’s assessment of the mitigating factors and his application of the principles of restraint and rehabilitation for a youthful first offender with family support. It was open to the trial judge in the circumstances of this case to find that the respondent had rehabilitative potential. As this court said in McKnight, at para. 35: “The weighing of relevant factors, the balancing process is what the exercise of discretion is all about.” See also: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 49.
[19] While the sentence imposed by the trial judge is lower than the 3 to 5-year range articulated in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721 and other cases, it is not demonstrably unfit. As the Supreme Court cautioned in Lacasse, sentencing ranges are tools for busy trial judges, not straightjackets. The trial judge gave adequate reasons for a “slight downward departure” from the 3 to 5-year range. His sentence is owed significant deference on appellate review. We see no basis to intervene.
[20] The sentence appeal is therefore dismissed.
“L.B. Roberts J.A.”
“ P.J. Monahan J.A.”
“ J. Dawe J.A.”
Corrections made on June 13, 2024: In the first sentence of paragraph 2, the fourth-last word was changed to “activity”. In the third sentence of paragraph 5, the word “activity” was added between the words “sexual” and “evidence”.
