



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that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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that could identify the victim shall not be published in any document or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. J.M., 2020 ONCA 806

DATE: 20201214

DOCKET: C66430

Fairburn A.C.J.O., Watt and
Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.M.

Appellant

David Anber, for the appellant

Jill Witkin, for the respondent

Heard and released orally:
December 7, 2020 by video conference

On appeal from the conviction entered by
Justice C. Kehoe of the Ontario Court of Justice, dated October 4, 2018.

REASONS FOR DECISION

[1]

This is an appeal from a
judge-alone trial where the appellant was convicted of one count of sexual assault.

[2]

The appellant raises three grounds
of appeal.

[3]

First, he claims that the trial
judge erroneously applied the rule in
Browne v. Dunn
(1893), 6 R. 67, (H.L.)
In our view, the trial judge understood the rule and
the purpose of the rule. We do not intend to go through the alleged material
misapprehensions of evidence as they pertain to the application of the rule.
Not only were the alleged misapprehensions immaterial to the application of the
rule, but the application of the rule was immaterial to the result at trial.

[4]

We say this for the following
reasons.

[5]

The focus of the trial was on
whether the very intoxicated complainant, who testified that he awoke to being
fellated by the appellant: (a) did not consent; and (b) whether the appellant
had a mistaken belief in communicated consent.

[6]

The complainants evidence was
accepted by the trial judge. He was clear that he did not subjectively consent
to being fellated by the appellant. Indeed, the trial judge found as a fact
that the complainant was unconscious at the start of the sexual activity in
question. There was ample evidence supporting that fact, including the degree
of his intoxication at that time.

[7]

As well, the trial judge found
that the Crown had proven beyond a reasonable doubt that the appellant could
not have had an honest but mistaken belief in communicated consent because, on
the appellants own evidence, he took no reasonable steps to ascertain the complainants
consent. In the circumstances of this case, including the uncontroverted
evidence of the complainants heavily intoxicated condition, reasonable steps
would have required something different than the appellant said he was acting
upon which was nothing more than a moan and the interpretation of some body
movements.

[8]

It was open to the trial judge to
conclude that the appellants own evidence deprived him of the defence of a
mistaken belief in communicated consent. Therefore, even if there were an error
in relation to the application of the rule in
Browne v. Dunn
,
it
would have had no impact on the verdict in this case.

[9]

The reasons just given also
explain why the second ground of appeal, an allegation of unreasonable verdict,
must also fail. There was ample evidence upon which the verdict rests.

[10]

This leaves the final ground of
appeal which relates to whether the reasons for judgment were sufficient. They
were. Taking a functional approach to the reasons, it is clear why the
appellant was convicted. The reasons have permitted meaningful appellate
review.

[11]

The appeal is dismissed.


Fairburn
A.C.J.O.

David
Watt J.A.
B. Zarnett J.A.






