



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. H.E., 2018 ONCA 879

DATE: 20181102

DOCKET: C64583

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

H.E.

Respondent

Christine Bartlett-Hughes, for the appellant

Anne-Marie McElroy, for the respondent

Heard: November 1, 2018

On appeal from the acquittal entered on October 17, 2017
    by Justice Robert J. Smith of the Superior Court of Justice, sitting without a
    jury, with reasons reported at
2017 ONSC 4277
.

REASONS FOR DECISION

[1]

The Crown is appealing H.E.s acquittal on the charge of sexually
    assaulting the complainant, his wife. During the trial the complainant
    testified that in 2002 Mr. E. pulled her onto the couch, forcibly removed her
    clothing, and forced intercourse on her, despite that she asked him to stop at
    least three times. Mr. E. testified and denied that he had any sexual contact
    with her on the occasion in question.

[2]

After accepting the complainants testimony that both she and Mr. E.
    believed that, as his wife, she did not have the right to refuse to have sex
    with him, the trial judge explained the acquittal by expressing a reasonable
    doubt about whether Mr. E. had the required
mens rea
for the offence. In
    elaboration, he cited the complainants testimony that she had lived in Canada
    since 1989, did not make any complaint until the parties had a dispute
    involving access [in circumstances] where the complainant continued to have sex
    with the accused from the time of the incident in 2002 until January 1, 2013 a
    period of approximately 11 years.

[3]

Mr. E. concedes that the trial judge committed reversible errors in this
    reasoning. He acknowledges that to the extent the trial judge based his acquittal
    on Mr. E.s and the complainants shared belief that the complainant could not
    refuse to have sex with him, that belief would be a mistake of law that cannot
    form the foundation for an honest but mistaken belief in consent defence. He is
    correct. To avoid conviction based on an honest but mistaken belief in consent,
    the accused must believe in a state of facts that amount to consent according
    to law
: Pappajohn v. The Queen
, [1980] 2 S.C.R. 120, at pp. 134,
    147-148;
R. v. Barton,
2017 ABCA 216, 386 C.R.R. (2d) 104, at paras.
    245, 254, leave to appeal to S.C.C. granted, [2017] S.C.C.A. No. 387, appeal
    heard and reserved October 11, 2018. A complainants belief that she must
    submit does not amount to the voluntary agreement required by s. 273.1(1).

[4]

Mr. E. also agrees that there was no air of reality to the honest but mistaken
    belief in consent defence because the diametrically opposed versions of events
    he and the complainant provided cannot be spliced together to give rise to a
    realistic prospect that Mr. E. could have mistakenly believed that the complainant
    was consenting:
R. v. Davis
, [1999] 3 S.C.R. 759, at para. 85. This
    was a credibility case in which Mr. E. did not raise the honest but mistaken
    belief in consent defence during the trial and it should not have been
    considered.

[5]

Mr. E. further recognizes that the factors cited by the trial judge in
    explaining his reasonable doubt about Mr. E.s
mens rea
logically have
    no bearing on Mr. E.s state of mind. Leaving aside controversies about whether
    these factors were even appropriate for consideration, they relate either to
    the complainants credibility or the
actus reus

element of her
    consent, but not to Mr. E.s
mens rea
.

[6]

The parties therefore agree that the appeal must be allowed and the
    verdict of acquittal set aside. The Crown has chosen not to ask this court to
    substitute a verdict of guilt. This is an appropriate concession because there
    were evidentiary errors made by the trial judge to the detriment of Mr. E.,
    including permitting the Crown to present evidence about other occasions when
    Mr. E. is alleged to have sexually assaulted the complainant without conducting
    a
voir dire

to determine the admissibility of this
    discreditable conduct evidence.

[7]

We would therefore allow the appeal, set aside the acquittal, and order
    a new trial.

J.C. MacPherson J.A.

B.W. Miller J.A.

David M. Paciocco
    J.A.


