



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. McNeice, 2019 ONCA 836

DATE: 20191023

DOCKET: C64482

Feldman, Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Timothy McNeice

Appellant

Gavin Johnston, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: October 16, 2019

On appeal from the conviction entered by Justice Matthew
    C. Webber of the Ontario Court of Justice on April 12, 2017.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault. The complainant was the
    daughter of cottage neighbours of the appellant and his wife. The complainant
    became close with the appellant and his wife, socializing with them, and in
    particular, drinking with them. The appellant was 53, the complainant 21 at the
    time of the offence.

[2]

The appellant became infatuated with the complainant and invited her to
    meet him at a motel. He planned a sexual encounter with her. He stocked the
    motel room with liquor, knowing the complainant liked to drink. He had rose
    petals strewn on the bed. She began to drink as soon as she got there. As the
    night progressed, she continued to drink and began to feel very intoxicated. He
    made a number of advances which she diverted. Her blouse was removed, and the
    appellant kissed her, licked her breast, and bit her buttocks.

[3]

His position was that the encounter was consensual and that he honestly
    believed she was consenting. Her position was that she did not consent to
    anything he did, that she was semi-conscious or in and out of consciousness the
    whole time.

[4]

Eventually he noticed that she was too relaxed and asked her if she
    was falling asleep on him. At that point she jumped up, grabbed her clothes,
    called her neighbour Ms. C to come and pick her up and ran outside to wait. When
    Ms. C. arrived, she was so concerned about how intoxicated and sick the
    complainant was that she took her to the hospital but she was released.

[5]

Because the appellant continued to email the complainant and threaten
    her in the days following the incident, she eventually went to the police to
    report the sexual assault.

[6]

In oral argument, counsel for the appellant focused on two main grounds
    of appeal. The first was that the trial judge failed to give the appellant, who
    was self-represented at the trial, adequate assistance in his conduct of the
    trial and of his defence, by cutting off an avenue of cross-examination of one
    of the Crown witnesses, Ms. C.

[7]

The appellant had asked Ms. C, who had experience in hypnotherapy, if
    she had ever hypnotized the complainant between the time of the incident and
    the time she went to the police and Ms. C answered: no. The appellant then
    asked the trial judge if he could go on to ask if she had hypnotized the
    complainant since that time. The appellant explained that he wanted to explore
    the possibility of collusion. The trial judge disallowed the question. He told
    the appellant that collusion was not an issue.

[8]

The appellant argues that there was an air of reality to the possibility
    that the complainant was influenced by Ms. C, who had very negative attitudes
    toward sexual assault and who had a significant interaction with her after the
    offence. Then in his reasons for judgment the trial judge praised Ms. C and
    accepted her evidence in its entirety, in particular regarding the
    complainants state of intoxication when she picked her up, which was the key
    to the rejection of the appellants version of what occurred.

[9]

It is well accepted that the trial judge has a duty to assist an
    unrepresented accused to understand the issues and to conduct his defence,
    while all the while maintaining his impartiality. As this court recently stated
    in
R. v. Forrester
, 2019 ONCA 255, 375 C.C.C. (3d) 279, the scope of
    that duty depends on the circumstances of the case and is circumscribed by what
    is reasonable: at para. 15 The court also stated at para. 16:

A trial judge, of course, has
    other duties, one of which is to ensure that the trial is effective, efficient
    and fair to both sides:
R. v. John
, 2017 ONCA 622, 350 C.C.C. (3d)
    397, at para. 47; and
R. v. Snow

(2004), 73 O.R. (3d) 40
    (C.A.), at para. 24. This includes ensuring that the trial does not become
    mired in irrelevant evidence and that the rules of evidence are applied fairly
    to both parties.

[10]

In our view, the trial judge lived up to his obligations in this case. The
    trial judge allowed the appellant to ask Ms. C whether she had hypnotized the
    complainant before she went to the police and gave her statement about what she
    says occurred with the appellant. The answer was no. There was little if any
    relevance to their interactions after that. Furthermore, counsel appointed by
    the court to cross-examine the complainant had questioned the complainant
    regarding any discussions she had had with Ms. C, and put to her that she only
    went to the police because Ms. C told her that she had been sexually assaulted.
    The complainant responded no. Therefore any air of reality to that suggestion
    within a relevant time period was explored and denied. There was no unfairness
    or prejudice from the trial judges ruling.

[11]

The second issue counsel focused on in oral argument was whether the trial
    judge failed to provide sufficient reasons regarding the appellants position
    that he had an honest but mistaken belief in consent. The submission was that
    the trial judge erred by failing to make a finding whether he believed the
    appellant or had a reasonable doubt when he said that the complainant removed
    her own blouse and returned his kiss, substantiating his belief in consent.

[12]

We do not agree. The trial judge made the finding that the complainant was
    intoxicated and semi-conscious, to the knowledge of the appellant, and
    therefore knew that she was not willingly consenting to sexual contact. He also
    found that she did not consent. We see no error in his approach or his finding.

[13]

Finally, the appellant submitted in his factum that the trial judge
    erred in misapprehending certain pieces of evidence which he says, when
    combined with other errors committed by the trial judge, resulted in an
    unreasonable verdict.

[14]

On this record, it cannot be said that the verdict was unreasonable or
    unsupported by the evidence. There was evidence before the trial judge, which
    he accepted, that was capable of supporting a conviction. Even with our ability
    to engage in a limited weighing of this evidence on appeal, it does not alter
    this conclusion.

[15]

Moreover, we are not persuaded that the trial judge misapprehended any
    evidence that played an essential role in his reasoning process. In a number of
    instances, the appellants complaint really boils down to a disagreement with
    the trial judges interpretation of various pieces of evidence, or the
    inferences that he drew from them.

[16]

For example, the appellant claims that the trial judge erred in finding
    that the complainants understanding of the state of being unconscious did
    not authentically describe that state. We disagree. The evidence as a whole
    provided an ample basis upon which the trial judge could find that, due to
    extreme intoxication, the complaints mental state was incompatible with
    consent.

[17]

The trial judge was entitled to consider the fact that the complainants
    call to Ms. C to pick her up was some evidence of a lack of consent to the
    activity that had just occurred. Although the complainant testified that she
    had never intended to stay at the motel with the appellant in the first place,
    she also testified that she usually took taxis. Consequently, the trial judge
    was entitled to use this evidence as he did.

[18]

Similarly, the appellant submits that the trial judge erred in reasoning
    that the complainants extreme intoxication when she was picked-up by Ms. C
    suggested that she was extremely intoxicated during her time in the hotel room.
    We disagree. Again, this was one piece of evidence from which the trial judge
    came to the conclusion that the complainant was severely intoxicated at the
    time of the sexual activity with the appellant.

[19]

The appellants other complaints are similar in nature. The trial judge
    was not required to draw the inferences that he did from the pieces of evidence
    identified by the appellant, but it was open to him to do so. We would not give
    effect to this ground of appeal.

[20]

The appeal is therefore dismissed.

K. Feldman J.A.

G.T. Trotter J.A.

B. Zarnett J.A.


