



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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.P., 2018 ONCA 878

DATE: 20181101

DOCKET: C64316

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.P.

Appellant

Janelle Belton, for the appellant

Rebecca Schwartz, for the respondent

Heard: October 30, 2018

On appeal from the judgment of Justice Paul Robertson of
    the Ontario Court of Justice, dated May 3, 2017.

REASONS FOR DECISION

[1]

The appellant appeals against his conviction on two counts of sexual
    assault against his step-granddaughter. The complainant visited the appellant
    at his apartment to assist him with household chores. She visited him weekly at
    first, then less frequently, from the time she was 18 until she was 27. The
    trial judge found that the appellant sexually assaulted the complainant on
    these visits during this time period, and that these assaults were part of an
    on-going course of conduct.

[2]

The trial judge found that the complainant acquiesced to the appellants
    demands out of fear, and therefore did not consent. Eventually, the complainant
    refused the appellant and went to the police. The trial judge characterized the
    complainant as simple, naïve, and below normal development of a person of
    the same age.

[3]

The appellant raised two grounds of appeal, arguing that the trial judge
    erred by:

(1)

reversing the burden of proof by drawing a negative inference from the
    appellant not having provided medical evidence of his physical inability to
    engage in sex; and

(2)

failing to apply the third step
    from
R. v. W.(D)
.
[1991] 1 S.C.R. 742.

[4]

We would not give effect to either of these grounds of appeal.

[5]

First, the trial judge did not reverse the burden of proof. Whether the
    appellants evidence was that he was incapable of engaging in sexual
    intercourse (as maintained by his trial counsel) or only that intercourse would
    have been physically difficult for him (as characterized by his counsel in this
    court), the basis of the finding that the appellant was capable of engaging in
    sexual intercourse was not the appellants failure to provide medical evidence
    to the contrary. The trial judge did comment on the absence of medical evidence
    that would have corroborated the appellants claim. However, when the trial
    judges reasons are taken as a whole, it is clear that he rejected the
    appellants evidence because he accepted, beyond a reasonable doubt, the
    conflicting evidence from the complainant and her mother.

[6]

Second, although the trial judge did not specifically enunciate the test
    from
W.(D).
, he was not obliged to do so, and he nevertheless observed
    its requirements. He did not approach the case as a credibility contest between
    the appellant and the complainant, but expressly articulated the need to
    consider all of the evidence which he accepted. With respect to the question of
    whether the complainant consented, for example, he held that [w]hile the
    complainants testimony is the only source of direct evidence as to her state
    of mind, credibility must still be assessed in light of all of the evidence including
    any ambiguous conduct.

[7]

Neither did the trial judge fail to reconcile material inconsistencies
    in the evidence. The trial judge addressed the key arguments raised by the
    parties. All witnesses agreed that the appellant suffered from breathing issues
    and other ailments. That was the reason that the complainant assisted him with
    household tasks at his apartment. Disagreement as to the precise extent of the
    appellants breathing issues was not material. It was unnecessary that the
    trial judge do more to resolve these more peripheral questions because he
    accepted evidence that the appellants health was not, at the relevant times,
    so impaired as to prevent him from engaging in the sexual acts alleged.

DISPOSITION

[8]

The appeal is dismissed.

J.C. MacPherson J.A.

B.W. Miller J.A.

David M. Paciocco
    J.A.


