



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.




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. 486.5(1), (2), (2.1), (3), (4),
    (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an
    order is made under section 486.4, on application of the prosecutor in respect
    of a victim or a witness, or on application of a victim or a witness, a judge
    or justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is of the opinion that the order
    is in the interest of the proper administration of justice.

(2)     On application
    of the prosecutor in respect of a justice system participant who is involved in
    proceedings in respect of an offence referred to in subsection (2.1), or on
    application of such a justice system participant, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for
    the purposes of subsection (2) are

(a) an offence under
    section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence
    committed for the benefit of, at the direction of, or in association with, a
    criminal organization;

(b) a terrorism offence;

(c) an offence under
    subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of
    Information Act
; or

(d) an offence under
    subsection 21(1) or section 23 of the
Security of Information Act
that
    is committed in relation to an offence referred to in paragraph (c).

(3)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)     An applicant for
    an order shall

(a) apply in writing to
    the presiding judge or justice or, if the judge or justice has not been
    determined, to a judge of a superior court of criminal jurisdiction in the
    judicial district where the proceedings will take place; and

(b) provide notice of
    the application to the prosecutor, the accused and any other person affected by
    the order that the judge or justice specifies.

(5)     An applicant for
    an order shall set out the grounds on which the applicant relies to establish
    that the order is necessary for the proper administration of justice.

(6)     The judge or
    justice may hold a hearing to determine whether an order should be made, and
    the hearing may be in private.

(7)     In determining
    whether to make an order, the judge or justice shall consider

(a) the right to a fair
    and public hearing;

(b) whether there is a
    real and substantial risk that the victim, witness or justice system
    participant would suffer harm if their identity were disclosed;

(c) whether the victim,
    witness or justice system participant needs the order for their security or to
    protect them from intimidation or retaliation;

(d) societys interest
    in encouraging the reporting of offences and the participation of victims,
    witnesses and justice system participants in the criminal justice process;

(e) whether effective
    alternatives are available to protect the identity of the victim, witness or
    justice system participant;

(f) the salutary and
    deleterious effects of the proposed order;

(g) the impact of the
    proposed order on the freedom of
expression
of those affected by it; and

(h) any other factor
    that the judge or justice considers relevant.

(8)     An order may be
    subject to any conditions that the judge or justice thinks fit.

(9)     Unless the judge
    or justice refuses to make an order, no person shall publish in any document or
    broadcast or transmit in any way

(a) the contents of an
    application;

(b) any evidence taken,
    information given or submissions made at a hearing under subsection (6); or

(c) any other
    information that could identify the person to whom the application relates as a
    victim, witness or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

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. Henry, 2022 ONCA 191

DATE: 20220308

DOCKET: C67954

Rouleau, Nordheimer and George JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Casey Matti Henry

Appellant

George (Knia) Singh, for the appellant

Rebecca Schwartz, for the respondent

Heard: March 2, 2022 by video conference

On appeal from the conviction entered by
    Justice Sean F. Dunphy of the Superior Court of Justice on November 12, 2019, and
    from the sentence imposed on January 17, 2020.

REASONS FOR DECISION

[1]

Mr. Henry appeals his conviction, and seeks
    leave to appeal his sentence, on one count of sexual assault.

[2]

The background facts may be stated simply. The appellant
    and the complainant met online. They made plans to meet up that same day. The
    appellant picked the complainant up in his car. He had a friend with him. The appellant
    eventually dropped the friend off in Brampton. The appellant and the
    complainant then went to the appellants place where he showered. He dressed in
    boxers and a t-shirt and lay on his bed. He invited the complainant to join him
    there. Sexual activity took place. The appellant believed it was consensual. The
    complainant says it was not.

[3]

The central issue at trial was consent. Credibility
    played an obvious role in the determination of that issue. The appellant raises
    three grounds of appeal: (i) the trial judge erred in dismissing an application
    under s. 276 of the
Criminal Code
, R.S.C. 1985, c. C-46; (ii) there was
    a reasonable apprehension of bias on the part of the trial judge; and (iii) the
    trial judge erred in his assessment of the credibility of the complainant.

[4]

We do not accept any of these challenges to the
    trial judges decision. In terms of the first ground, evidence of a
    complainants sexual activity extrinsic to the subject matter of the charge is
    presumptively inadmissible:
Code
, s. 276(2);
R. v. Goldfinch
,
    2019 SCC 38, [2019] 3 S.C.R. 3, at para. 40. The issue in this case was whether
    a text message that the complainant sent to the appellant regarding her
    experiences with Black men, along with evidence that the complainant had a
    history of going to bars and meeting men, satisfied the criteria for
    admissibility under s. 276.
[1]
In our view, the trial judge was correct in finding that they did not. In
    particular, we agree with the trial judge that the comments regarding Black men
    were sexual in nature and, considering the context in which they were made,
    including the fact that they were raised by the appellant, are not suggestive
    of any animus on the complainants part. We also agree with the trial judge
    that the contents of the text message regarding her prior experiences were not
    relevant to the issues in the trial and that the evidence about past conduct relating
    to bars was, at best, peripherally relevant.

[5]

On the second ground of appeal, we do not see
    anything in the record that would substantiate the assertion that the trial
    judge exhibited any bias. The fact that the trial judge interjected frequently during
    defence counsels argument of the s. 276 application does not evidence bias. It
    is clear that the trial judge was having some difficulty accepting the points
    that counsel was trying to make, and he made that clear to counsel in an effort
    to get a better explanation. While the trial judge might have been better to restrain
    the frequency of his interventions, in order to avoid creating a potential
    appearance of unfairness, his conduct does not rise to the very high level
    required for a conclusion of bias:
R. v. Ibrahim
, 2019 ONCA 631, 147
    O.R. (3d) 272, at para. 84.

[6]

Further, the fact that the trial judge intervened
    on a few occasions in the course of the appellants cross-examination of the
    complainant but did not exercise more control over the complainant (who was a
    difficult witness) when she was being cross-examined does not demonstrate bias.
    It is up to each trial judge to decide how and how much they will intervene in
    those types of situations. Some judges will do more; some will do less. Bias
    does not necessarily arise from deciding one way as opposed to the other. It is
    worthy of note, on this point, that the trial judge took the same approach when
    the appellant was cross-examined and also proved to be difficult.

[7]

On the third ground of appeal, the appellant has
    not been able to point to anything in the record that undermines the
    conclusions that the trial judge reached regarding the credibility of either
    the complainant or the appellant. The trial judge explained why he believed the
    complainant and, in doing so, he addressed many of the inconsistencies and
    other issues that arose from her evidence. The trial judge also explained the
    difficulties he had with the appellants evidence. Ultimately, that was the
    trial judges call to make. The appellant has failed to identify a proper basis
    that would permit this court to interfere with those findings.

[8]

On the sentence appeal, the trial judge
    correctly identified the range of sentence for this offence as being between
    three and five years. He decided on a sentence of three and one-half years. In
    reaching his conclusion, the trial judge noted that the sexual assault involved
    forced fellatio and vaginal intercourse. He also found that the appellants behaviour
    towards the complainant was demeaning. The trial judges decision on sentence
    is entitled to deference. Absent an error in principle, or the failure to
    consider a relevant factor, or the erroneous consideration of an aggravating or
    mitigating factor, an appellate court is not warranted in intervening:
R.
    v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. There are no
    such errors, or failures, in this case.

[9]

The conviction appeal is dismissed. Leave to
    appeal sentence is granted but the appeal is dismissed.

Paul Rouleau J.A.

I.V.B. Nordheimer J.A.

J. George J.A.





[1]
We recognize that references to evidence relating to an application
    under s. 276 of the
Criminal Code
are
    covered by a publication ban pursuant to s. 278.95. However, we consider it
    appropriate, in this case, to exercise our discretion to publish our reasons:
R. v. N.H.
,

2021 ONCA 636, 158
    O.R. (3d) 294
.


