



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)       REPEALED: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    information that could identify the victim shall not be published in any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. B-D.N., 2018 ONCA 248

DATE: 20180313

DOCKET: C61928

Watt, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B-D.N.

Appellant

Soloman Friedman, for the appellant

Nancy Dennison, for the respondent

Heard and released orally: February 22, 2018

On appeal from the conviction entered on October 29, 2015
    and the sentence imposed on March 11, 2016 by Justice Charles T. Hackland of
    the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior Court of Justice, sitting
    without a jury, the appellant was found guilty of counts of sexual assault,
    sexual assault with a weapon, assault with a weapon and unlawful confinement.

[2]

The trial judge, invoking the principles in
Kienapple v.
    The Queen
, [1995] 1 S.C.R. 725, stayed
    the convictions of sexual assault and assault with a weapon and entered
    convictions for sexual assault with a weapon and unlawful confinement.

[3]

The appellant appeals
    his convictions. He advances three grounds of appeal. He says that the trial
    judge erred:

i.

by misapprehending
    various aspects of the evidence introduced at trial;

ii.

by intervening in the
    proceedings to such an extent and in such a manner that it deprived the
    appellant of a trial that was and appeared fair; and

iii.

by applying a higher standard
    of scrutiny to the evidence of the appellant than he applied to that of the
    complainant.

[4]

In our view, this appeal
    fails.

[5]

To take first, the
    submission that the trial judge misapprehended the evidence.

[6]

As we understand this
    submission, at least as framed in his factum, the appellant says, that the
    trial judge misapprehend the evidence about:

i.

whether the marital
    relationship was over by the date of the offence;

ii.

whether the appellant
    sought the complainants consent to the conduct that constituted the offences
    of which he was convicted; and

iii.

the elements of the
    sexual encounter itself.

[7]

We are not persuaded
    that the trial judge misapprehended the evidence in concluding that the marital
    relationship was effectively over on the date of the offences.

[8]

The complainant had made
    it clear that she wanted a divorce a week before the date of the offences, although
    she acknowledged that reconciliation efforts had occurred earlier that same
    month. The appellants true complaint, as it seems to us, is not that the trial
    judge misapprehended this evidence, but rather that he preferred the evidence
    of the complainant to that of the appellant. The trial judge was entitled to do
    so and his decision in that respect is entitled to deference on review in this
    court.

[9]

Second, we are satisfied
    that the trial judge did not misapprehend the evidence in concluding that the
    appellant never sought the complainants agreement to have sex, at least in the
    sense of not having directly asked her that question.

[10]

The appellant never did
    directly ask the complainant whether she agreed to have sex with him, rather, he
    simply inferred her consent from her body language and conduct and from her
    failure to respond to his comment make peace, make love. The trial judge adverted
    to this evidence and submission and rejected it as he was entitled to do.

[11]

Third, the trial judge
    did not misapprehend the evidence that the appellant admitted that he never
    asked the complainant whether he could whip her with a leather belt.

[12]

The appellants evidence
    was that he whipped the complainant after she said spank me. We are unable to
    tease out of this record any material misapprehension of the evidence on this
    issue.  What emerged clearly, as the trial judge found, was that there was no
    evidence that the appellant asked the complainant if he could whip her with a
    leather belt on this occasion.  That he did so without her voluntary agreement
    to this aspect of the sexual activity was sufficient to vitiate consent.

[13]

We acknowledge that the
    trial judge intervened on several occasions during the course of this trial. The
    reasons varied. But at bottom, this is not an exercise about the number of
    interventions. Taken cumulatively, we are satisfied that no case can be made out
    that these interventions deprived the appellant of a fair trial, compromised
    his right to make full answer and defence, or prevented his counsel from
    presenting and advancing the defence case through cross-examination or the
    introduction of evidence. Taken cumulatively and viewed through the eyes of a
    reasonable observer, present throughout the trial, we are not satisfied that
    the link between the interventions and the factual findings of the trial judge,
    which the appellant seeks to make, can be made out.

[14]

As for the argument
    about uneven scrutiny, it is rooted, as are many of similar kind, in the
    following path of reasoning.

The trial judge believed the complainant, despite
    inconsistencies or frailties in her evidence. The trial judge did not believe the
    appellant, despite inconsistencies or frailties in his evidence. Therefore, the
    trial judge erred in applying an uneven standard of scrutiny to the evidence.
    As this court has said on many other occasions, this argument moves in a
    circle. It fails as matter of logic. The conclusion does not follow from the
    premises. And it fails here, not only as a matter of logic, but also on a
    review of the trial judges reasons considered as a whole.

[15]

The appeal from
    conviction is dismissed.

[16]

The appellant also sought
    leave to appeal sentence. He made no submissions on that issue. Leave to appeal
    sentence is refused.

David Watt J.A.
David Brown J.A.
Grant Huscroft J.A.



