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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 File and Parties

Court of Appeal for Ontario Date: 2024-08-30 Docket: C70859

Judges: Huscroft, George and Copeland JJ.A.

Between: His Majesty the King, Respondent And: Waleed Abu-Qaddum, Appellant

Counsel: Michael Hayworth, for the appellant Vallery Bayly, for the respondent

Heard: August 26, 2024

On appeal from the conviction entered on March 15, 2022 and the sentence imposed on June 13, 2022 by Justice David Berg of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was found guilty of sexual assault and sentenced to 30 months’ imprisonment. He appeals conviction and seeks leave to appeal sentence. Following the hearing we dismissed the appeal with reasons to follow. These are our reasons.

[2] The complainant and appellant were on a first date. The trial judge found that the appellant persisted in attempting to kiss the complainant despite her refusal and request that he stop. The trial judge found, further, that the appellant performed cunnilingus on the complainant, who was crying and trying to say “please don’t”, but the words would not come out. The appellant penetrated the complainant with his unprotected penis and she screamed “no”. He withdrew his penis and was ejaculating as he did so.

The defence of honest but mistaken belief was unavailable

[3] The appellant argues that the trial judge erred by failing to consider the defence of honest but mistaken belief in communicated consent. We do not agree.

[4] The trial judge found that the appellant was reckless or wilfully blind as to the complainant’s consent and therefore had the requisite mens rea for the offence. This precludes any air of reality to the defence of mistaken belief in communicated consent, because mistaken belief in consent cannot arise from an accused’s own recklessness or wilful blindness as to the complainant’s consent: s. 273.2 of the Criminal Code, R.S.C. 1985, c. C-46.

The trial judge did not subject the evidence to uneven scrutiny

[5] The appellant argues that the trial judge erred by subjecting the evidence to uneven scrutiny. To succeed, the appellant must establish that the trial judge applied different standards of scrutiny to the evidence of the complainant and the appellant. This argument is difficult to establish and counsel did not press it at the hearing. It is in essence an attack on credibility findings that are entitled to deference.

[6] The trial judge found that the complainant was credible and explained his reasons for doing so. He was entitled to make that finding even though he did not accept the complainant’s characterization of her outing with the appellant as something other than a date. This was a minor issue in the scheme of things. In contrast, the trial judge found significant problems with the appellant’s credibility. He did not apply a different standard of scrutiny.

[7] The appeal from conviction is dismissed.

Sentence

[8] The appellant argues that the trial judge failed to appropriately consider the mitigating factors, resulting in a demonstrably unfit sentence. He argues that a conditional sentence should have been imposed.

[9] We do not agree. The trial judge considered the mitigating factors in crafting his sentence, including the fact that the appellant was a first-time offender with good family support and a pro-social lifestyle. The result was a sentence that was slightly below the three-year range identified for cases involving forced penetration: R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 77; R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641, at para. 22. The trial judge made no errors in principle, nor is the sentence demonstrably unfit. This was not a case for a conditional sentence.

Disposition

[10] The appeal is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.

“Grant Huscroft J.A.”

“J. George J.A.”

“J. Copeland J.A.”