



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Byun, 2020 ONCA 600

DATE: 20200923

DOCKET: C67426

Fairburn A.C.J.O., MacPherson
    and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sang Jun Byun

Appellant

Sang Jun Byun, acting in person

Andrew Furgiuele, appearing as duty counsel

Andrew Hotke, for the respondent

Heard: September 9, 2020 by
    video conference

On appeal from the conviction entered on
    June 25, 2019 by Justice Richard T. Knott of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

In June 2019, the appellant was convicted of
    sexual assault by Knott J. of the Ontario Court of Justice following a trial in
    Brockville. In September 2019, the appellant received a custodial sentence of
    14 months plus three years probation, a ten year weapons prohibition and a 20
    year SOIRA order.

[2]

The appellant appeals the conviction.

[3]

The appellant, complainant and four other people
    went to a cottage for a weekend. The appellant and complainant did not know
    each other prior to this weekend. The complainant was married; her husband did
    not come to the cottage. A great deal of alcohol was consumed by the attendees,
    including the appellant and the complainant.

[4]

The appellant and the complainant went to sleep
    in different bedrooms. At some time during the night, the appellant went to the
    washroom to vomit. He then went to the complainants bedroom and got into her
    bed. He testified that he did not see anyone else in the bed when he entered.

[5]

The complainant testified that she awoke to a
    man having intercourse with her. She initially thought it might have been a
    dream or her husband. She pushed the person off her and, along with other
    occupants of the cottage who were now awake, confronted the appellant, while
    making a recording of part of the confrontation. Due to her intoxication, there
    were certain gaps in her memory of the events, including how and when she went
    to the bedroom.

[6]

The appellant testified that he awoke to the
    complainant hugging him from behind and touching his penis. He said that the
    complainant flipped him over and initiated intercourse. The intercourse ended
    after a couple of minutes and he went back to sleep.

[7]

In his reasons, the trial judge rejected the
    accuseds evidence. He found that it was contradicted by the complainants
    evidence, her description of his post-conduct behaviour, the recorded
    confrontation, and the accuseds conversation with one of the other men at the
    cottage. At no point on the recording or in his conversation with that man did
    the accused say that the complainant initiated the intercourse or profess his
    innocence.

[8]

The trial judge said that he had a doubt as to
    whether the accused entered the bedroom knowing that it was occupied. He found
    that the complainant was awakened by a man engaging in sexual intercourse with
    her. He concluded that the complainant did not consent to intercourse:

I accept the complainants evidence without a
    reasonable doubt that she was awakened by a man engaging in sexual intercourse
    with her. She pushed the man off her. She may have thought the man was her husband
    then may have guessed it was [one of the other men at the cottage]. She did not
    know it was the accused who was engaging in sexual intercourse until she saw
    the accused at the end of the bed.

[9]

The trial judge considered whether the accused
    had an honest but mistaken belief with respect to the complainants consent. He
    determined that the defence was not available to the accused because any such
    belief was anchored in his own self-induced intoxication. The trial judge also
    found that the accused did not take reasonable steps to make sure that the
    complainant was awake, knew she was engaging in sexual activity, and with whom.

[10]

On this appeal, the appellant advances two
    grounds of appeal.

[11]

First, the appellant contends that the trial
    judge erred by rejecting the defence of an honest but mistaken belief in
    consent on account of reasonable steps not being taken to ascertain consent.

[12]

We do not accept this submission. We see no
    error with the trial judges approach to reasonable steps. The trial judge concluded
    that the appellant took no steps to ensure [the complainant] was awake and
    aware of what was going to transpire. He took no steps to ensure she knew, in
    the dark of the room, that she was having sexual intercourse with the accused.
    The appellant did not point to any evidence that would undermine the trial
    judges conclusion on this issue. This conclusion is owed deference.

[13]

Second, the appellant asserts that the trial
    judge erred in rejecting the defence of an honest but mistaken belief in consent
    on account of self-induced intoxication.

[14]

We are not persuaded by this submission. The
    trial judge said:

He was drunk. He knew she was drunk.



I do not expect some drunken man to take all
    reasonable steps such as turning on the lights and having a full and frank
    discussion about what they were about to engage in, but the accused took no
    steps.



But the accuseds defence that the complainant
    consented to the sexual activity was due to his own self-induced intoxication,
    and he did not take reasonable steps in the circumstances, known to him at the
    time, to ascertain the complainant was consenting.

[15]

In our view, this was a full and sound
    assessment of the defence presented by the appellant.

[16]

The appellant is on bail pending appeal. At the
    hearing, the parties agreed that he would surrender into custody when the court
    provided notice of the release of its decision.

[17]

The appeal is dismissed.

Fairburn A.C.J.O.

J.C. MacPherson J.A.

S. Coroza J.A.


