



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. C.P., 2020 ONCA 379

DATE: 20200615

DOCKET: C65700

Watt, Trotter and Harvison Young
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.P.

Appellant

Paul J.I. Alexander, for the
    appellant

Nicole
    Rivers, for the respondent

Heard:
    by video call on June 8, 2020

On appeal from the conviction entered on
    June 8, 2018 and the sentence imposed on August 3, 2018 by Justice Marcella Henschel
    of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant was convicted of assault and
    sexual assault of his then wife. He argues that the trial judge misapprehended
    the evidence and thus erred in:

1.

finding the complainant had no motive to
    fabricate;

2.

finding that the WhatsApp message, correctly
    translated, amounted to an admission of guilt; and

3.

finding that the complainant had disclosed the
    sexual assault allegations to her family prior to the request for immigration
    documentation.

[2]

We would not give effect to any of these
    grounds.

[3]

As far as the finding that there was no motive
    to fabricate, the trial judge concluded that the record did not support the
    appellants claim that the complainant came up with the allegations after
    learning (and believing) that she could be subject to deportation on the basis
    that the marriage lasted less than two years unless she established that the
    marriage ended because of abuse. The trial judges conclusion was open to her
    on the evidence. Most significantly, the trial judge found that the complainant
    had told her parents of the abuse months before she returned to Canada and
    learned about any possible immigration consequences of the marriage breakdown.

[4]

The trial judge carefully considered both
    parties evidence as to the meaning of the WhatsApp message. She rejected the
    appellants explanation of the slapping incident because it made no sense in
    light of his evidence that he had accidentally hit her when he had tapped her
    on the shoulder to ask her to shut off her laptop and she turned around. She
    was entitled to do so. She considered this in the context of the evidence as a
    whole. Read fairly, we do not agree that the trial judge misapprehended the
    appellants evidence on the way in which the slap occurred. Moreover, even if
    she had, this difference was not material because the appellants version makes
    no more sense in the circumstances, and particularly in light of the
    complainants reaction.

[5]

In addition, the trial judge was entitled to
    accept the complainants version of the WhatsApp message.

[6]

Finally, we do not agree that the trial judge
    misapprehended the evidence that the complainant had previously disclosed
    everything to her parents as including the incident of sexual abuse. It is
    clear that she at the very least disclosed the slapping incident. Even if the
    trial judge had inappropriately concluded that everything included the sexual
    assault incident, the appellants argument that the sexual assault was material
    to the immigration consequences of the breakdown of the marriage was entirely
    speculative. The evidence fell short of establishing that the complainant
    personally thought she could be deported although she knew the rules and knew
    that she had to follow a process step by step. Read as a whole, the reasons
    provide ample support for the trial judges rejection of the argument that the
    complainant fabricated the sexual assault allegation because she was afraid of
    being deported.

[7]

Finally, we are jointly asked to delay release
    of this decision until the pandemic passes. We see no basis for doing so.

[8]

As agreed by the parties, the victim surcharge
    imposed by the trial judge should be set aside. The appeal is otherwise
    dismissed.

David
    Watt J.A.

Gary
    Trotter J.A.

A.
    Harvison Young J.A.


