



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(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) 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    that could identify the victim or a witness shall not be published in any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, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(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    shall not be published in any document or broadcast or transmitted in any way.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; and

(b) on application of the victim or the
    prosecutor, make the order.

(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.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(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. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. L.T., 2019 ONCA 535

DATE: 20190624

DOCKET: C65749

Benotto, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

L.T. (A Young Person)

Appellant

Najma Jamaldin, for the appellant

Megan Petrie, for the respondent

Heard and released orally: June 19, 2019

On appeal from the conviction entered on June 15, 2018
    and the sentence imposed on July 25, 2018 by Justice J.E. Allen of the Ontario
    Court of Justice.

REASONS FOR
    DECISION

[1]

The appellant submits that the trial judge erred in his credibility
    analysis of the complainant by failing to consider the inconsistencies arising
    from different accounts she gave about the alleged sexual assault.

[2]

We do not agree. The trial judge did not overlook the inconsistencies.
    He referred to the complainants lack of precision with respect to times and
    her confusion about what happened after the assault. A trial judge is not
    required to address every inconsistency in the evidence. It was open to him to
    accept the complainants evidence and conclude that she said no to the sexual
    activity and was unshaken in her core account of communicating this to the
    appellant.

[3]

The appellant further submits that the trial judge erred by not
    considering the defence of honest but mistaken belief prior to making
    credibility findings.

[4]

Again, we do not agree. There was, as the trial judge found, no air of
    reality to the defence which trial counsel did not raise. The appellant and the
    complainant gave diametrically opposed versions of what occurred. On the
    appellants evidence, she was an active participant. On her evidence, she said
    no. Honest but mistaken belief is
communicated
consent as opposed to
assumed
or
implied
consent  see
R. v. Barton
, 2019 SCC 33.

[5]

Courts have generally refused to put the defence of honest but mistaken
    belief in consent to a jury when the accused clearly bases his defence on
    voluntary consent and he also testifies that the complainant was an active,
    eager or willing partner whereas the complainant testifies that she had
    vigorously resisted. In such cases, the question is generally simply of
    credibility of consent or no consent. See
R. v. Park
, [1995] 2 S.C.R.
    836 at para. 26.

[6]

The appellants youth and level of maturity were considered and taken
    into account by the trial judge throughout.

[7]

With respect to sentence, we see no error in principle, nor is it
    demonstrably unfit. Most of the fresh evidence was before the sentencing judge.
    The appellants continued efforts at rehabilitation are commendable, but they
    do not affect the trial judges determination as to sentence.

[8]

The appeal is dismissed, leave to appeal the sentence is granted, but
    the sentence appeal is dismissed.

M.L. Benotto J.A.

L.B. Roberts J.A.

B.W. Miller J.A.


