



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    information that could identify the victim or a witness shall not be published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(iii)   REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. M.M., 2018 ONCA 1019

DATE: 20181211

DOCKET: C63554

Hoy A.C.J.O., Feldman and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.M.

Appellant

Brian Greenspan and Michelle Biddulph, for the appellant

David Friesen, for the respondent

Heard: December 5, 2018

On appeal from the conviction entered by Justice Anne M.
    Molloy of the Superior Court of Justice on December 16, 2016.

REASONS FOR DECISION


[1]

This is an appeal from conviction for sexual
    assault. The appellant maintains that his trial counsel provided ineffective
    assistance and that this resulted in a miscarriage of justice. We dismissed the
    appeal with reasons to follow. These are those reasons.

[2]

To succeed on an ineffective assistance claim,
    the appellant must establish the material facts upon which he relies, that the assistance
    was ineffective and that the ineffective assistance resulted in a miscarriage
    of justice, either by virtue of an unreliable verdict or an unfair trial. Deference
    is owed to counsels performance at trial and there is a strong presumption
    that counsels conduct fell within the wide range of reasonable professional
    assistance:
R. v. G.D.B.
, 2000 SCC
    22, [2000] 1 S.C.R. 520, at para. 27;
R. v. L.H.E.
, 2018 ONCA 362, at paras. 6-7.

[3]

We are not persuaded that any of the alleged
    failings on the part of trial counsel amounted to ineffective assistance and,
    in any event, are satisfied that there was no miscarriage of justice.

[4]

The appellant argues that his trial counsel
    failed to give him disclosure and failed to prepare him to testify. Trial
    counsel responds that the appellant was given disclosure and that any lack of
    preparation arose from the appellants own conduct. Trial counsel describes the
    appellant as having been very difficult to deal with and somewhat cocky. That
    description of the appellant is consistent with the trial judges observation
    that the appellant displayed a swaggering pompous attitude in court. It is
    also consistent with the appellants attitude during cross-examination on his
    fresh evidence affidavit, where he affirmed that counsel had him attend at
    counsels office to discuss his testimony. The appellant asked rhetorically,
    what is there to discuss? He said that he was intent on testifying in a way
    that was consistent with what he had told the police and others.

[5]

In our view, if there was any lack of
    preparation, it arose from the appellants attitude (as reflected in the
    cross-examination on his affidavit in this court) and not a lack of effort on trial
    counsels part. Moreover, trial counsel cannot be blamed for the fact that the
    appellants version of events, as first told to the police, simply made no
    sense to the trial judge. Counsel cannot be blamed for evidence that is inherently
    difficult to believe in several important respects:
R. v. Dunbar
, 2007 ONCA 840,

at para. 27.

[6]

The appellant also claims that trial counsel was
    incompetent by failing to obtain his medical and phone records. We disagree. As
    for the medical records, the appellant contends that he had a shoulder injury
    that would have made it impossible for him to have committed the offence,
    including ripping the complainants bra at the front and tearing a hole in the
    crotch of her tights. The appellant says that the purpose of the medical
    records would have been to substantiate his claim that his shoulder had been
    injured, making him incapable of tearing the complainants clothes. Notably, we
    see no support in the fresh evidence to sustain the proposition that the shoulder
    injury made it impossible for the appellant to have committed the offence.
    Moreover, the trial judge effectively accepted the fact of the injury and
    simply found as a fact that it would not take much strength or dexterity in the
    injured shoulder to tear the complainants clothing. There is nothing in the
    fresh evidence that belies that finding of fact.

[7]

As for the phone records, the appellant says
    that they would have supported the fact that the complainant called him after
    he had left her apartment. In the cross-examination on his affidavit on appeal,
    the appellant acknowledged that he had a burner phone registered under a false
    name. Leaving aside the fact that it could have been difficult to obtain those
    records, there is nothing in the evidentiary record on appeal to suggest that
    the absence of the records gave rise to a miscarriage of justice. Indeed, the
    fact of communication between the appellant and complainant was clear and had
    been memorialized in text message communications, including the appellants
    response to the complainants suggestion of rape, that she had a good memory
    for an uncomphous [unconscious] bitch.

[8]

The appellant also complains that his trial
    counsel should have confronted the complainant with a DNA report showing male
    DNA on her neck and left breast. The appellant contends that the DNA analysis
    would have undermined the complainants denial that the appellant had
    consensually touched and kissed her in that location of her body.  However, in
    light of the complainants evidence that when she awoke from a state of
    unconsciousness, her breasts were exposed and the appellant was naked beside
    her and penetrating her vagina with his penis, it is difficult to see how the
    DNA report showing male DNA in her breast area could have undermined her
    credibility or assisted his.

[9]

Having regard to the suggestion that trial
    counsel failed to confront the complainant with inconsistent statements, the
    allegedly contradictory statements came from the notes of police officers and paramedics
    who attended the scene. It is not clear that the authors of those notes were
    recording what the complainant had told them firsthand. In any event, the
    alleged inconsistencies were on peripheral matters that could not have shaken
    the complainants evidence.

[10]

Trial counsels conduct fell within the range of
    reasonable professional assistance.

[11]

The appellant acknowledges that this case turned
    on credibility. At the core of the trial judges reasons for rejecting the
    appellants evidence was her finding that his evidence made no sense. She
    concluded her judgment with the following observations:

As I have stated, I do not believe [M.M.], nor
    do I find his explanation for these events to be remotely plausible. I fully
    accept that [M.M.] went to Toronto, to Ms. A.s apartment, expecting to get
    sex. He knew she was drunk and messed up on drugs and that she wanted company.
    He added that together and concluded he would get sex; that was his
    expectation.

However, I also accept Ms. A.s evidence that
    she was vulnerable, intoxicated, and afraid to be alone. She thought [M.M.] was
    coming as a friend to help her. She was not expecting to have sex with him. I
    accept Ms. A.s evidence that she passed out, and that she woke up to find
    [M.M.] naked in her bed, engaging in sexual intercourse with her.

I am satisfied beyond a reasonable doubt,
    based on all of the evidence that [M.M.] ripped Ms. A.s bra and tore a hole in
    her leggings. I do not believe his evidence that he was physically incapable of
    doing so. It does not take enormous strength or dexterity to accomplish such a
    task, and all he had to do with his left arm was hold on, while his right hand
    and arm could do all the tearing.

I do not believe for a second that Ms. A. tore
    her own clothing after the fact, to frame [M.M.]. [M.M.] did that after she was
    unconscious, and he did so for the purpose of carrying out the sexual acts that
    were the only reason he drove to Toronto in the first place. Further, he did so
    without regard to the fact that Ms. A., completely unconscious, was not
    consenting.

I am satisfied beyond a reasonable doubt that
    [M.M.] engaged in sexual acts with Ms. A., including penetrating her vagina
    with his penis, while she was unconscious, and knowing she was not consenting.

[12]

This was a fair trial and there was no
    miscarriage of justice.

[13]

For these reasons the appeal was dismissed.

Alexandra Hoy A.C.J.O.
K. Feldman J.A.
Fairburn J.A.


