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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

DATE: 20241004 DOCKET: C70510

Rouleau, van Rensburg and Madsen JJ.A.

BETWEEN

His Majesty the King Respondent

and

Garrett Beal Appellant

Counsel: Mark C. Halfyard and Robert Nanni, for the appellant Nicholas Hay, for the respondent

Heard and released orally: September 24, 2024

On appeal from the conviction entered by Justice Jeffery R. Richardson of the Ontario Court of Justice on December 8, 2021.

Reasons for Decision

[1] The appellant appeals his conviction for sexual assault. At trial the only issue was consent.

[2] The appellant raises three grounds of appeal. His first ground is that the trial judge’s finding that the appellant did not have consent to the sexual activity preceding the sexual intercourse was made in error as the complainant acknowledged in her evidence that she had consented to that activity. This error, in the appellant’s submission, likely affected the trial judge’s view of the appellant’s credibility and conduct on the night in question.

[3] We disagree. When the trial judge’s reasons are read as a whole, it is apparent that the trial judge clearly understood that the activity prior to the sexual intercourse was consensual. The trial judge was simply noting that the appellant had neither sought nor obtained explicit communicated consent for the sexual activity preceding sexual intercourse, making it unlikely that he did so just prior to engaging in the intercourse. Given that the complainant was high on marijuana and drowsy, and that she had expressed reluctance towards sexual activity in text messages she exchanged with the appellant, the appellant ought to have but did not take steps to obtain consent before engaging in any sexual activity.

[4] The appellant’s second ground overlaps with his first. He argues that the trial judge went on to err in finding it was unbelievable that the appellant would have sought explicit verbal consent as the sexual activity became more invasive because he had not sought explicit verbal consent to the less invasive sexual activity. In support for this submission the appellant relies on R. v. Barton, 2019 SCC 33, [2019] 2 SCR 579, at para. 108, wherein the court noted that the requirement that an accused take reasonable steps will be elevated when the sexual activity in question is more invasive. Viewed in this light, the appellant’s assertion that he sought and obtained verbal consent before engaging in the intercourse should be considered reasonable and ought not to have provided a basis for rejecting the appellant’s evidence.

[5] Again, we disagree. Just because the reasonable steps requirement is relatively elevated for intercourse, this does not mean that a trial judge is prohibited from critically assessing the appellant’s entire course of conduct and disbelieving the appellant’s evidence that he sought verbal consent at the stage where he engaged in intercourse.

[6] The third ground of appeal is that the trial judge erred by relying on ungrounded assumptions as a basis for finding that the complainant would not have consented to have sex with the appellant. Specifically, he maintains that the trial judge erred by inferring that the complainant would not have consented to unprotected sex with the appellant because she discovered he once had chlamydia. This error, he submits, undermines the trial judge’s rejection of the appellant’s evidence.

[7] We do not accept this submission. As we read the trial judge’s reasons, the discussion related to the appellant having chlamydia was not central to the trial judge’s ultimate rejection of the appellant’s evidence on the issue of consent. The trial judge rejected the appellant’s evidence and listed 13 points. Further, we see no error in the trial judge concluding that, in the circumstances of this case, the complainant’s knowledge that the appellant had given his ex-girlfriend chlamydia could be considered as a factor in assessing the likelihood of the complainant having consented to intercourse.

“ Paul Rouleau J.A. ”

“ K. van Rensburg J.A. ”

“L. Madsen J.A.”