Publication Restriction 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2024-10-01 Docket: COA-22-CR-0055

Judges: Hourigan, Huscroft and Coroza JJ.A.

Between:

His Majesty the King Respondent

and

R.R. Appellant

Counsel:

R.R., acting in person Jeffery Couse, appearing as duty counsel Ken Lockhart, for the respondent

Heard and released orally: September 9, 2024

On appeal from the conviction entered on April 4, 2022, by Justice Brock Jones of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of one count each of sexual assault and voyeurism. He received a sentence of 36 months in custody: 30 months on the sexual assault conviction and six months consecutive on the voyeurism conviction. The appellant appeals his convictions.

[2] The facts surrounding the convictions are as follows. The appellant and the complainant were acquaintances. The appellant invited the complainant to his private dance studio on August 24, 2019. They drank alcohol, the complainant became intoxicated, vomited, and eventually fell asleep. She testified that she awoke to the appellant groping her. According to her, he attempted to digitally penetrate her and then penetrated her anus with his penis. She says that she did not open her eyes during this time. She testified that she let out a grunt at which point the appellant stopped and left to go to another room. The complainant said that she pretended she was not fully awake when he returned. The appellant told the complainant she needed to change her shirt because she had vomited on it. She gave evidence that she sat up so that the appellant could remove her shirt, and with her eyes still closed, she perceived what she thought was a phone camera flash. She says she had no clothing on her upper body at the time she perceived the flash.

[3] The appellant testified that there was no sexual contact between he and the complainant and when he helped the complainant change her shirt, he did so in a manner where the original shirt remained on. He also denied photographing her naked breasts.

[4] The complainant and appellant exchanged social media messages after the incident, which were admitted into evidence. Among those messages, was a message from the complainant asking if the appellant had the photo as she wanted it. The appellant testified that when he stated in a message to the complainant “being intoxicated isn’t an excuse”, he was referring to taking a picture of him touching her nose.

[5] On the conviction appeal, the appellant submits that the trial judge erred by mistakenly inferring that he knew the complainant’s age and relying on that inference to infer consciousness of guilt on behalf of the appellant. We do not accept this submission. In our view, while the trial judge did remark that the appellant attempted to mislead the court in rejecting his denial of knowledge that the complainant was younger than 19 and thus unable to lawfully purchase alcohol, we do not accept that the trial judge, because of this finding, then inferred consciousness of guilt on behalf of the appellant. The trial judge did not use his rejection of the appellant’s explanation as circumstantial evidence of guilt nor did he do so at paragraph 95 of his judgment. In our view, the trial judge did not reason that because the appellant had attempted to mislead the court, he had deliberately fabricated the evidence to avoid culpability. Instead, at paragraph 100 of his reasons, the trial judge considered the evidence of the appellant as a whole and found that it was illogical, contained inconsistencies and was contradicted by evidence that he did accept. Accordingly, consistent with the principles outlined in R. v. W.(D.), [1991] 1 S.C.R. 742, he rejected the defence evidence and found that it did not leave him with a reasonable doubt. He then concluded that the Crown had met its burden on the evidence that he did accept. We reject this ground of appeal.

[6] The other ground of appeal advanced is that the trial judge erred in finding that there was no evidence regarding what date the photograph of the appellant poking the complainant’s nose was taken. We observe that there was no direct evidence on this point. Further, and in any event, the date of the photograph was not material to the trial judge’s analysis. His point was that he did not believe the appellant’s testimony that he was referring to that photograph. Accordingly, this ground of appeal is also rejected.

[7] The sentence appeal is dismissed as abandoned.

[8] The conviction appeal is dismissed.

[9] The appellant is to turn himself in to Toronto South Detention Centre by 7 a.m. on September 10, 2024.

“C.W. Hourigan J.A.”

“Grant Huscroft J.A.”

“S. Coroza J.A.”