



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Daoud, 2018 ONCA 963

DATE: 20181128

DOCKET: C60344

Pepall, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammed Daoud

Applicant/Appellant

Randall Barrs, for the appellant

Jill Witkin, for the respondent

Heard: November 21, 2018

On appeal from the conviction entered on September 5,
    2014 and the sentence imposed on April 15, 2015 by Justice Sheila Ray of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexually assaulting the complainant. The
    prosecution that led to his conviction was based on the theory that the
    complainant woke up to find the appellant having sex with her. Because she was
    passed out from intoxication at the time, she was incapable of consenting to
    the sexual acts that occurred.

[2]

The appellant appeals his conviction, arguing that the trial judge erred
    by failing to consider whether the complainants lack of memory raised a
    reasonable doubt that there was either consent, or an honest but mistaken
    belief in consent.

[3]

We dismiss the appeal. The trial judge provided compelling reasons for
    not believing the appellants testimony. She then recognized that a witnesss
    belief that something did not happen could be based simply on a lack of memory
    before making clear that her decision was not based on the complainants
    testimony that she did not believe she consented. The trial judge explained
    that she convicted the appellant because of evidence confirming the
    complainants extreme intoxication, testimony that the complainant passed out
    in a drunk-induced sound sleep upon being put in the bed, and that, in her intoxicated
    condition it was impossible for her to have consented. Finally, the manner in
    which the complainant fled the bed confirmed her shock, her surprise and further
    confirmed her extreme intoxication at the time. Simply put, while the
    complainants testimony did not prove beyond a reasonable doubt that she did
    not wake up and consent, the totality of the evidence did so.

[4]

As for the attempt by the appellant to rely on the mistaken belief in
    consent defence, that defence rested entirely on the rejected testimony of the
    appellant, and he made damaging admissions that could not get beyond the wilful
    blindness obstacle. The trial judges reasons for rejecting this defence are
    cogent and correct.

[5]

The appeal is dismissed.

S.E. Pepall J.A.

David M. Paciocco J.A.

Harvison Young J.A.


