



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Mastenbroek, 2020 ONCA 76

DATE: 20200131

DOCKET: C66696

Watt, Tulloch and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Casey Mastenbroek

Appellant

Walter Fox and Sayeh Hassan, for the appellant

Catherine Weiler, for the respondent

Heard and released orally: January 22, 2020

On appeal from the conviction entered on November 23,
    2018 by Justice Kenneth G. Hood of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault after a trial before a
    judge of the Superior Court of Justice sitting without a jury. He was sentenced
    to a term of imprisonment of 20 months and ordered to comply with a probation
    order for a period of 2 years after his release from custody.

[2]

In this court, the appellant advanced three grounds of appeal against
    conviction. He says that the trial judge erred:

i.

in failing to deal with inconsistencies in the testimony of various
    Crown witnesses, in particular, the testimony of the complainant;

ii.

in engaging in stereotypical reasoning in assessing the testimony of two
    Crown witnesses and the appellant; and

iii.

in failing to appreciate the motive advanced by the appellant for the
    complainants claim that the acts of sexual intercourse were not consensual.

[3]

On the evidence adduced at trial, the trial judge found, as he was
    entitled to do, that the complainant did not consent to having sexual
    intercourse with the appellant. He also found, again as he was entitled to do,
    that she was incapable of consenting to that sexual activity. He rejected, as
    unworthy of belief, again as he was entitled to do, the testimony of the
    appellant.

[4]

The reasons of the trial judge well explain the factual conclusions he
    reached which led him to his finding that the appellants guilt of sexual
    assault had been established beyond a reasonable doubt.

[5]

In our view, the trial judges analysis of the issue of consent was
    sound. His assessments of credibility reveal no flaw and are entitled to
    deference in this court. We are not persuaded that he misapprehended any
    material evidence or that he misapprehended the position advanced by defence
    counsel on the appellants behalf.

DISPOSITION

[6]

The appeal is dismissed.

David Watt J.A.

M. Tulloch J.A.

Gary Trotter J.A.


