



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Flores, 2020 ONCA 158

DATE: 20200227

DOCKET: C66209

Watt, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric German Flores

Appellant

Nicholas A. Xynnis, for the appellant

Christine Tier, for the respondent

Heard and released orally:
    February 24, 2020

On appeal from the conviction entered on
    January 23, 2018 and the sentence imposed on July 5, 2018 by Justice Tamarin M.
    Dunnet of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION


[1]

The appellant was convicted of a single count of
    sexual assault after a jury trial in the Superior Court of Justice. He was
    sentenced to a term of imprisonment of four years less credit for
    pre-disposition custody. The net sentence imposed was three years, seven
    months. He appeals both conviction and sentence.

The Background Facts

[2]

The appellant and complainant met when both were
    attending alcohol treatment programs at a local addiction and mental health
    facility.

[3]

Several weeks after the conclusion of their
    respective programs, the complainant lost a big project in her chosen field.
    She relapsed and drank steadily for a week. She recognized ultimately that she
    needed to go to a detox centre. After unsuccessful attempts to enlist the
    assistance of two friends, she called the appellant. He agreed to help her.

[4]

When the appellant arrived at the complainants
    apartment, the complainants dog-walker was also there. The appellant told the
    dog-walker that she could leave. He would make dinner for the complainant and
    then take care of her.

[5]

According to the complainant, the appellant
    approached her as she was lying on the couch. He got on top of her. He said he
    always found her hot and incredibly sexy. Despite her resistance, the
    appellant removed the complainants pants, performed oral sex upon her and then
    had intercourse with her, during which he ejaculated. He did not wear a condom.

[6]

The appellant testified. He said that the sexual
    activity between them was consensual. He offered to wear a condom or to
    withdraw before ejaculation, but the complainant declined his offers.

The Appeal from Conviction

[7]

On the appeal from conviction, the appellant
    advances two grounds of appeal. Each has to do with events that took place
    after the sexual intercourse. More particularly, each concerns the use the trial
    judge instructed the jury they could make of the evidence of those events.

Ground #1: The Examination and Treatment Evidence

[8]

The jury heard evidence that the complainant
    attended at a local hospital where a nurse completed a sexual assault
    examination kit, and a report detailing her findings. The complainant also
    undertook a month-long prophylactic treatment program (PEP) during which she
    experienced very unpleasant side effects. The purpose of this program was to
    ensure that the unprotected intercourse did not result in any sexually
    transmitted diseases.

[9]

In her instructions to the jury, the trial judge
    explained how this evidence could be used in reaching a verdict. She said:

You will recall that [B.C.] testified that she
    underwent a sexual assault examination at Womens College Hospital as she was
    concerned because the sexual assault was unprotected. As part of her treatment,
    swabs were taken vaginally and medication was prescribed to prevent infectious
    diseases. She testified that the symptoms from the medication made her
    physically ill for a month, but she took it all the way through.

It has long been held that post-event demeanour
    of a sexual assault victim can be used as circumstantial evidence to
    corroborate the complainants version of events. When assessing the credibility
    of [B.C.], you may find that her testimony regarding her willingness to undergo
    an invasive sexual assault examination corroborates her version of events. It
    is up to you.

[10]

In our view, the evidence that the complainant
    reported to hospital, had administered a sexual assault examination kit, and
    later followed a post-exposure prophylactic treatment program (PEP), was
    relevant and admissible at trial. While the use of the language corroborates
    the testimony of the complainant was ill-chosen, we are not persuaded that its
    inclusion caused the appellant any prejudice.

[11]

In this case, there was a significant body of
    evidence that described the complainants physical and emotional condition
    after the appellant had left her apartment. That this evidence was not
    marshalled in support of the complainants claim enured to the benefit of the
    appellant.

[12]

In addition, in this case, the PEP evidence had
    some significant probative value in that, according to the appellant, the
    complainant had declined two offers from the appellant to protect herself from
    sexually transmitted diseases. In these circumstances, it seems unlikely that,
    having foregone those offers, she would willingly submit to a regimen of
    medication that she described variously as dreadful, unbelievable and horrific.

[13]

It is also not without significance that trial
    counsel was content with what the trial judge proposed to say about this
    evidence before the charge was delivered and raised no objection thereafter.

Ground #2: The Text

[14]

The second ground of appeal against conviction
    relates to the trial judges instructions to the jury about their use of a text
    the appellant sent to the complainant when he learned that he would be charged
    with sexual assault. This evidence was admitted in the defence case without any
    adjudication on its admissibility.

[15]

The principal complaint in this court is that in
    her instructions to the jury, the trial judge left the issue of spontaneity to
    the jury when this issue had already been decided because the evidence had been
    admitted. In this case, it would have been preferable had trial counsel sought
    a ruling on admissibility in advance of tendering the text message. However,
    once the evidence had been admitted, trial counsel made use of it in closing
    address. We are not persuaded that the jury instructions about its use
    prejudiced the appellant in any way.

The Appeal from Sentence

[16]

On the appeal from sentence, the appellant says
    that the trial judge erred by concluding that the offence involved a breach of
    trust. Although this was not a traditional trust relationship, it is clear that
    the complainant sought the appellants assistance in getting to a detox
    facility. The appellant undertook to do so. At the very least, he took
    advantage of a vulnerable person whom he knew required help. This attracted
    denunciation and deterrence as the paramount sentencing objectives. What is
    more, the sentence imposed was well within the range of sentences applicable to
    this offence and the offender who committed it. There is no basis upon which
    this court can interfere.

DISPOSITION

[17]

The appeals from conviction and sentence are
    dismissed, except to the extent that any victim surcharge imposed at trial is
    set aside.

David Watt J.A.

G. Pardu J.A.

L.B. Roberts J.A.


