



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    that could identify the victim or a witness shall not be published in any document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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Edgar, 2016 ONCA 120

DATE: 20160211

DOCKET: C58012

Feldman, Cronk and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Edgar

Appellant

Constance Baran-Gerez, for the appellant

Andreea Baiasu, for the respondent

Heard: January 14, 2016

On appeal from the convictions entered on May 9, 2013 and
    the sentence imposed on October 6, 2014 by Justice K. Pedlar of the Superior
    Court of Justice, sitting without a jury.

L.B. Roberts J.A.
:

Overview

[1]

The appellant pleaded guilty to the
    offences of dangerous driving, flight from police, breaking and entering and
    forcible confinement. He was found guilty of the offence of sexual assault, to which
    he did not plead guilty. He appeals only from that conviction. If his
    conviction appeal is allowed, he seeks leave to appeal his sentence on all his
    convictions.

[2]

The appellant argues on the conviction
    appeal that the trial judge erred in finding him guilty of sexual assault
    because there was no overt interference with the complainants sexual or bodily
    integrity. The Crown submits that the totality of the appellants actions
    created a violent and sexualized atmosphere that gave rise to a threat of
    sexual assault against the complainant.

[3]

For the reasons that follow, I agree
    with the Crowns submission. Accordingly, I would dismiss the appeal.

Surrounding circumstances

[4]

The appellants trial proceeded on the
    basis of an uncontested statement of fact, which can be summarized briefly.

[5]

On November 8, 2011, the appellant
    accosted the complainant, a stranger, outside her apartment door. He forced his
    way into the complainants apartment by using a chokehold around her neck. He
    ordered her, Dont fn scream, open your door, I need to use your phone. Once
    inside, he released her and locked the door. He started telling her about a
    police chase and drugs. He was red and sweaty. He ranted about his mistreatment
    by others. He made several telephone calls. When not on the telephone, he was
    pacing angrily and erratically between the complainant and her front door. She
    thought he was high on drugs. She was terrified. Other than the balcony, there
    was no other place for the complainant to go. The complainant sought the
    appellants permission to smoke cigarettes and drink tea on her balcony, which
    he allowed her to do after she brought him a drink of water.

[6]

As the complainant was drinking her
    second cup of tea on the balcony, the appellant knocked on the balcony door and
    said to her, Before I go, we have to have an agreement, but first I need you
    to come in and watch me masturbate.  The complainant complied and sat down on
    the couch near the appellant while he masturbated by putting his hands down his
    pants. He did not expose his penis or touch the complainant. After a few
    minutes, the appellant asked the complainant when her husband was going to be
    home. She told him soon. By this time, the appellant had been in the
    complainants apartment for about an hour. The complainant feared that she
    would be raped or killed. The complainant ran out on the balcony and dove over
    the rail, falling 12 feet to the ground and breaking both her ankles.  She
    screamed for help and tried to run away.

Analysis

[7]

The issue on the conviction appeal is
    whether the appellants action of masturbation, which he forced the complainant
    to watch in close proximity, amounts to a threat of sexual assault.

[8]

The defence submits that the appellants
    act of masturbation does not amount to a threat of sexual assault because the
    appellant did not touch or move towards the complainant, nor was his act
    accompanied by any threatening words. The defence concedes that the appellants
    actions in the complainants apartment created a terrifying and sexualized
    atmosphere that understandably terrorized the complainant. However, his
    isolated act of masturbation cannot amount to a sexual assault because it did
    not overtly threaten the complainants sexual or bodily integrity.

[9]

I disagree.

[10]

To commit a sexual assault, it was not
    necessary for the appellant to touch or even verbally threaten the complainant.
    A persons act or gesture, without words, force or any physical contact, can
    constitute a threat to apply force of a sexual nature, if it intentionally creates
    in another person an apprehension of imminent harm or offensive contact that
    affronts the persons sexual integrity.  Coupled with a present ability to
    carry out the threat, this can amount to a sexual assault. See
Criminal
    Code
, R.S.C. 1985, c. C-46, ss. 265(1)(b) and
    (2);
R. v. Cadden
(1989), 48 C.C.C.
    (3d) 122 (B.C.C.A.); and
R. v. Johnson
, 2006 CanLII 37519 (Ont. S.C.).

[11]

Defence counsel argues that
Cadden
and
Johnson
are
    distinguishable in that the offences in those cases involved overt acts
    combined with verbal demands made of the victims, which are absent in the
    present case:  in
Cadden
, a teacher
    motioned to young children to come under his desk and then told them to fellate
    or touch his penis; in
Johnson
, the
    offender exposed his penis and, while holding a gun, ordered his victim to
    fellate him.

[12]

I would not give
Cadden
and
Johnson
this
    narrow interpretation.

[13]

What elevates the appellants act of
    masturbation from an indecent act to a sexual assault are the surrounding
    circumstances of sexualized violence, control, and confinement that the
    appellant created, and to which he deliberately subjected the complainant. Those
    are the same kind of circumstances that led the courts in
Cadden
and
Johnson
to
    hold that the offenders actions constituted sexual assaults: see
Cadden
, at p. 128; and
Johnson
, at para. 152.

[14]

On the undisputed facts of this case,
    the appellant was a violent intruder who forcibly confined the complainant to
    the restricted space of her apartment.  Over 6 feet tall and about 300 pounds,
    the appellant easily overpowered the complainant to force entry into her
    apartment. His appearance and movements were highly erratic and volatile. For
    about an hour, he controlled and dictated the complainants movements within
    her own apartment, physically blocking her exit.

[15]

Finally, the appellant commanded the
    complainant to enter into an agreement with him before he would leave her
    apartment, which included, but was not necessarily limited to, her watching him
    commit a sexual act in close proximity. The already terrifying atmosphere
    produced by the appellant was intensified by his asking her when her husband
    would be home. The complainant was so fearful of being immediately raped or
    killed that she risked very serious injury by diving over the railing of her
    apartment balcony to escape from the appellant.

[16]

It must be remembered that sexual
    assault is an act of power, aggression and control, and that a threat to invade
    the bodily or sexual integrity of another person or to otherwise apply force is
    itself a hostile act:
Cadden
, at p. 128.
    The appellant intentionally terrorized the complainant for a prolonged period, in
    violent and sexualized circumstances, causing her to reasonably believe that he
    had the present ability to rape or kill her.

[17]

Viewed in the context of the entire
    circumstances, the appellants acts constituted a threat of sexual assault.

Disposition

[18]

For these reasons, I would dismiss the
    conviction appeal. As the appellants proposed sentence appeal is predicated on
    his success on the conviction appeal, I would deny leave to appeal sentence.

Released: February 11, 2016

L.B. Roberts J.A.

I agree K. Feldman J.A.

I agree E.A. Cronk J.A.


