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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2024-07-03 Docket: COA-22-CR-0280

Judges: Huscroft, Dawe and Wilson JJ.A.

Between:

His Majesty the King Respondent

and

Thomas Adderley Appellant

Counsel:

Elizabeth Warren, for the appellant Charmaine M. Wong, for the respondent

Heard: June 26, 2024

On appeal from the conviction entered on November 12, 2021, and from the sentence imposed on October 13, 2022, by Justice Heather J. Williams of the Superior Court of Justice.

Reasons for Decision

[1] Thomas Adderley appeals his conviction of sexual assault and seeks leave to appeal the 18-month custodial sentence imposed by the trial judge. At the hearing, his appeal of the imposition of a SOIRA order was abandoned. We dismissed his appeal from conviction and from the sentence with reasons to follow. These are our reasons.

[2] The appellant submits that the trial judge erred by applying uneven scrutiny to the evidence of the appellant and that she failed to properly apply the law such that the trial was rendered unfair. He submits further that the trial judge overlooked an absence of forensic evidence linking him to the sexual assault.

[3] Further, he requests leave to appeal the sentence imposed and submits the trial judge erred by finding as an aggravating factor that it had been proved beyond a reasonable doubt that he had unprotected sexual intercourse with the complainant. He submits that if we find that the trial judge made this error, we should vary the 18-month jail sentence imposed at trial to allow him to serve it in the community as a conditional sentence.

[4] We do not accept these submissions. The trial judge did not err in her evaluation of the evidence of the complainant and of the appellant, contrary to the direction from the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742. Rather, the trial judge’s reasons follow the analysis set out in W.(D.) and explain why she did not accept the appellant’s account in his police statement about what happened between him and the complainant, or about his reasons for later sending her text messages that appear inculpatory on their face. The trial judge’s credibility findings are amply supported on the evidence and are entitled to deference from this court.

[5] As to the sentence, we are satisfied that it was open to the trial judge to find as fact, based on the complainant’s evidence, that the appellant had not been wearing a condom when he had sexual intercourse with her while she slept. Accordingly, the trial judge made no error in treating this as an aggravating factor and there is no basis to interfere with the sentence. That being said, we note that the appellant committed an unprotected, penetrative sexual assault on the complainant, who was 16 years old and was asleep when the assault began. The sentence imposed was well below the range set out by this court in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, which does not appear to have been cited to by the sentencing judge. See also this court’s subsequent decision in R. v. R.S., 2023 ONCA 608, 430 C.C.C. (3d) 229, both of which make clear that a penetrative sexual assault will typically attract a penitentiary sentence of at least three years.

Conclusion

[6] The appeal from conviction is dismissed. While leave to appeal the sentence imposed is granted, the appeal from sentence is dismissed.

“Grant Huscroft J.A.”

“J. Dawe J.A.”

“D.A. Wilson J.A.”