



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. B.C., 2018 ONCA 951

DATE: 20181126

DOCKET: C61816

Paciocco, Fairburn and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.C.

Appellant

Margaret Bojanowska, for the appellant

Holly Loubert, for the respondent

Heard and released orally: November 22, 2018

On appeal from the conviction entered on July 16, 2014 by
    Justice Robert Kelly of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

B.C. was convicted of the brutal sexual assault of a young woman he had
    been having a sexual relationship with, after they had a falling out. He was
    also convicted of unlawful confinement, obstructing a peace officer and breach
    of recognizance related to the same event. He appeals against his convictions
    of sexual assault and unlawful confinement. The complainant said she did not
    consent to what happened. B.C. said she had. Despite difficulties with the
    complainants evidence, the trial judge found the complainant to be credible
    and reliable. He found that B.C. was not credible and reliable, and that his
    evidence was incapable of raising a reasonable doubt.

[2]

B.C. raises numerous grounds in appealing his conviction. We accept none
    of those grounds, which can be conveniently addressed in the following order.

[3]

The trial judge did not take improper judicial notice in rejecting the defence
    theory that the complainant had concocted her evidence. He simply applied
    common sense.

[4]

The trial judge did not err by failing to discuss in his decision the
    testimony of the sexual assault nurse. We agree with the Crown. That evidence
    was incapable of compromising the testimony of the complainant.

[5]

Nor did the trial judge err by not addressing all of the contradictions
    in the complainants evidence. The trial judge, under no obligation to address
    all of the evidence, offered a thorough decision that dealt extensively with
    those concerns that were material.

[6]

The trial judge did not err in finding support for the complainants
    testimony in a photograph of her taken during the event. Given her posture in
    the photograph, he was entitled to accept that it was consistent with her
    narrative and not B.Cs.

[7]

The appellants suggestion that the trial judge gave uneven scrutiny to
    the evidence is unpersuasive. B.C.s evidence was not rejected because of a
    harsher evaluation of its consistency than was applied to the complainants
    evidence. His evidence was found to be implausible and contradicted by the
    physical evidence relating to the straps and the photographs, yet hers was
    supported.

[8]

The legal representation B.C. received at trial was not ineffective. His
    counsel made a tactical decision not to use the evidence that B.C. relies upon to
    demonstrate ineffectiveness. Counsels conduct fell within the ambit of
    reasonable professional assistance. There is no miscarriage of justice or
    unfairness resulting.

[9]

We do not accept that the trial judges reliance on the details provided
    in the complainants evidence was an error. Just as it is permissible for a
    judge to doubt a bare assertion, the trial judge was entitled to consider the
    coherence and content of the narrative in deciding whether to believe it.

[10]

Even
    though the trial judge erred by relying on the accuseds
voir

dire
testimony to illustrate that he scripted his trial testimony, the trial judge
    gave other poignant examples of this. The error could not have affected the
    outcome in light of the evidence as a whole and the trial judges caution to
    himself on the limited effect he was to give demeanour evidence.

[11]

We
    therefore dismiss the appeal.

David M. Paciocco J.A.

Fairburn J.A.

B. Zarnett J.A.


