



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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. Prohaska, 2017 ONCA 684

DATE: 20170905

DOCKET: C58238

Watt, Huscroft and Trotter JJ.A

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Prohaska

Appellant

Frank Miller, for the appellant

Rebecca De Filippis, for the respondent

Heard and released orally: August 28, 2017

On appeal from the conviction entered on August 9, 2013
    by Justice Patricia C. Hennessy of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of assault after a trial before a judge
    sitting without a jury on charges of sexual assault and sexual interference.
    The conduct alleged took place in a stall in a public washroom at a campground.
    The complainant was three years old and a stranger to the appellant.

The Background Facts

[2]

The circumstances of the alleged offence fall within a narrow compass
    and are largely uncontested.

[3]

The complainant and an older sibling walked to the public washroom at a
    campground where their family was staying. As the complainant approached one
    side of the entrance, the appellant arrived at the same time and opened the
    door to the washroom. The appellant and complainant entered the washroom at the
    same time. Shortly thereafter, the appellant entered the washroom stall where
    the complainant was standing, his one-piece sleeper down around his ankles. Without
    any request from the complainant for assistance, the appellant, who had not
    knocked on the stall door, reached down and pulled the complainants sleepers
    up, making contact with the complainants buttocks as he did so.

[4]

In his interview by investigators and his testimony at trial, the
    appellant denied any suggestion that his contact with the complainant was
    motivated by any sexual interest or sexual purpose.

The Grounds of Appeal

[5]

On his appeal from conviction, the appellant contends that the trial
    judge erred:

i.

in failing to apply an objective test to the appellants conduct,
    thereby failing to decide whether the conduct was within the class of conduct
    generally acceptable in the ordinary conduct of daily life; and

ii.

in failing to apply the criminal standard to the issues of whether the
    conduct fell within the class of ordinarily acceptable conduct and whether the
    appellant was acting unreasonably.

Discussion

[6]

We do not give effect to either ground of appeal advanced by the
    appellant.

[7]

As we apprehend the argument advanced, it is that the statutory
    definition of assault is not exhaustive of what the Crown must prove to
    establish guilt of that offence. The appellant would add to the requirements
    that a touching be intentional and non-consensual, that it must also be
    socially unacceptable conduct.

[8]

We are unable to construe the definition of assault in s. 265(1)(a) of
    the
Criminal Code
in this way. It is unsupported by authority and at
    odds with the applicable principles of statutory construction.

[9]

In the result, the appeal is dismissed.

David Watt J.A.

Grant Huscroft J.A.

G.T. Trotter J.A.


