



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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., 2022 ONCA 233

DATE: 20220322

DOCKET:
    C68627

Tulloch,
    Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.M.

Appellant

J.M., acting in person

Breana Vandebeek, duty counsel

Jeffrey Wyngaarden, for the respondent

Heard: January 10, 2022 by video conference

On appeal from the conviction entered on
    January 11, 2020 by Justice Jill Copeland of the Superior Court of
    Justice, sitting with a jury.

REASONS
    FOR DECISION

[1]

The appellant was found guilty and convicted of
    one count of sexual assault, following a trial by judge and jury. He was
    sentenced to 18 months custody. He now appeals his conviction.

[2]

On appeal, the appellant raises six grounds, all
    relating to alleged errors he claims the trial judge committed in her charge to
    the jury.

[3]

All of the appellants grounds of appeal can be
    summed up as alleging an inadequacy in the trial judges jury charge. He
    submits that the trial judge erred in her instructions on the use the jury
    could make of the DNA evidence; failed to connect the defence theory to the
    facts of the case; failed to instruct the jury on the limited use of the expert
    biological evidence; failed to instruct the jury that the complainants
    evidence was to be viewed objectively and critically; and failed to instruct
    the jury on whether the appellant knew the complainant did not consent.

[4]

For the reasons that follow, the appeal is
    dismissed.

[5]

The appellant and the complainant knew each other
    as they both worked at the same place. On April 2, 2017, they planned to meet
    later that evening at the appellants apartment. Prior to their meeting, they
    discussed how the evening would unfold. According to the complainant, she had indicated
    to the appellant on a previous occasion that she was romantically interested in
    him but told him she did not want to have sex with him.

[6]

Once she arrived at the appellants apartment,
    and their moods relaxed, they engaged in mutual consensual oral sex. Sometime
    after, the appellant tried to insert his penis into the complainants vagina,
    but the complainant told him she did not want to have sexual intercourse. A
    short time later, the appellant again tried to have sexual intercourse with the
    complainant, and was successful in penetrating the complainant, at which time
    she said no, I dont want to have sex. The appellant did not stop but instead
    continued.

[7]

According to the complainant, the second
    incident of sexual intercourse lasted for about 10 minutes.

[8]

Eventually the appellant fell asleep, at which
    time the complainant texted a friend, who sent a third-party to pick her up.
    The complainant and the third party went straight to the police and provided a
    statement. A forensic expert subsequently analyzed various samples from the
    complainants underwear. DNA testing revealed that the substance on the
    complainants underwear was likely semen.

[9]

At trial, the only issue was consent.

[10]

The appellant conceded that there was touching
    for a sexual purpose. The trial turned on whether the Crown had proven beyond a
    reasonable doubt that the complainant had not consented to sexual intercourse,
    and whether the appellant knew that the complainant had not consented.

[11]

We see no merit to any of the appellants grounds of appeal.

[12]

It
    is well established that the adequacy of a charge must be considered in the
    context of the trial as a whole, as Watt J.A. explained in
R. v. P.J.B.
, 2012 ONCA 730, 298 O.A.C. 267,
    at para. 49 [citations omitted]:

Jury charges do not take place in isolation,
    but in the context of the trial as a whole. Appellate review of the adequacy of
    jury charges must acknowledge this reality, especially where the complaint is
    about the extent to which the trial judge has reviewed the evidence in final
    instructions. Appellate review on this issue includes consideration of the
    complexity and volume of the evidence adduced at trial, the extent of its
    review by counsel in their closing addresses, the length of trial proceedings,
    the issues to be resolved by the jury, the effect of a more complete and
    balanced review of the evidence, and whether counsel objected to the charge on
    the ground advanced on appeal. The test is one of fairness. Provided the
    evidence is left to the jury in a way that will permit the jurors to fully
    appreciate the issues raised and the defences advanced, the charge will be
    adequate.

[13]

The complainant alleged and testified that while
    she consented to some aspect of the sexual contact with the appellant, she did
    not consent to sexual intercourse. The DNA testing suggested that the fluid
    found on the complainants underwear was likely semen. The trial judge dealt
    with this evidence and instructed the jury as to what use they could make of
    the DNA evidence. In her charge to the jury, the trial judge also clearly and
    succinctly set out the position of the defence and that of the Crown and
    related the relevant evidence for each position to assist the jury in their
    deliberation. There was no objection to the charge by the defence.

[14]

The trial judge carefully and thoroughly
    reviewed the evidence in her charge to the jury and instructed the jury on the
    essential elements of the offence of sexual assault that the Crown was required
    to prove beyond a reasonable doubt. She highlighted for the jury that the live
    issue in the trial was that of consent; that the Crown was obliged to prove
    beyond a reasonable doubt, based on all the evidence adduced at the trial, that
    the complainant did not consent to the sexual intercourse; and that in order
    for them to convict the appellant, they must also find that the appellant knew
    that the complainant did not consent to the alleged sexual intercourse.

[15]

The trial judge further noted that the Crowns evidence
    turned on the credibility and reliability of the complainants evidence. She painstakingly
    reviewed the complainants evidence and pointed out various inconsistencies in her
    evidence.

[16]

We see no error in the jury charge as alleged. A
    jury charge must be viewed as a whole and assessed as to its functionality. As
    this court recently noted in the case of
R. v. R.D.
, 2020 ONCA 23, at
    para. 10:

The standard required of a jury charge is
    adequacy, not perfection. The appellate courts approach is functional,
    assessing the adequacy of the charge as a whole, in the context of the trial in
    which the instructions were given, and in light of its purpose:
R. v.
    Jacquard
, [1997] 1 S.C.R. 314, at paras. 32-41;
R. v. Newton
,
    2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13. The charge must
    provide the jury with a sufficient understanding of the facts as they relate to
    the relevant issues from the trial:
Jacquard
, at para. 14. The trial
    judge has an obligation to review the substantial parts of the evidence and to
    relate the evidence to the issues to be decided. What is necessary are
    references to the evidence that are sufficient, in the context of the case and
    the entirety of the charge, to alert the jury to the specific parts of the
    evidence that are of significance to its decision on particular issues and to
    the positions of the parties on those issues. The role of the trial judge is to
    decant and to simplify:
R. v. Huard
, 2013 ONCA 650, 302 C.C.C.
    (3d) 469, at paras. 53 and 56.

[17]

This was a case that turned on the evidence of
    the complainant. The appellant did not testify. The case turned on whether the
    jury believed the complainant that she did not consent to the sexual
    intercourse. The trial judge thoroughly reviewed the evidence and highlighted
    all the relevant evidence, including areas of inconsistencies in the
    complainants evidence. The trial judge also reminded the jury throughout her
    charge of the onus of proof on the Crown to prove the guilt of the appellant
    beyond a reasonable doubt, and that the appellant was innocent until proven
    guilty based on the evidence beyond a reasonable doubt.


[18]

In all the circumstances, we see no merit to any
    of the grounds of appeal. As such, the appeal is dismissed.

M.
    Tulloch J.A.

G.
    Pardu J.A.

A.
    Harvison Young J.A.


