



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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.D., 2020 ONCA 50

DATE: 20200127

DOCKET: C66604

Gillese, Rouleau and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.D.

Appellant

J. Scott Cowan, for the appellant

Charmaine Wong, for the respondent

Heard and released orally: January 16, 2020

On appeal
    from the conviction entered on November 29, 2018 by Justice Joseph M.W. Donohue
    of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from his conviction for
    sexual assault. He advances only one ground of appeal.

[2]

The appellant argues that the trial judge erred
    in admitting a statement he made to the police. Specifically, he submits that,
    on a proper reading of the statement, it is apparent that he had invoked his
    right to counsel and the interviewing officer did not facilitate the exercise
    of that right.

[3]

We reject this ground of appeal.

[4]

The appellant acknowledges that the
    informational component under s. 10(b) of the
Canadian Charter of
    Rights and Freedoms
was properly met. The sole issue is whether the implementational
    component was fulfilled.

[5]

The appellant sought to exclude his videotaped
    interview by police. The trial judge reviewed and considered the transcript and
    video of the exchange between the appellant and the interrogating officer. As
    well, the interrogating officer testified on the
voir dire
. The trial
    judge concluded on a balance of probabilities that, despite being aware of his
    right to counsel, the appellant had not expressed a desire to consult counsel. This
    determination is a finding of fact which, absent palpable and overriding errors,
    is entitled to deference.

[6]

The exchange relied on by the appellant is about
    two thirds into a 94- page-long transcribed statement. The critical exchange is
    as follows:

APPELLANT: can I call a lawyer then because
    like

OFFICER: you can call a lawyer

APPELLANT: no no I dont think Im guilty
    thats the issue and you keep pressuring me more into it

OFFICER: Im not okay

APPELLANT: no no

OFFICER: Im not pressure you

[7]

The appellant submits that this constitutes an
    equivocal request to consult a lawyer and that the police were obliged to stop
    the interview at this point and facilitate the request.

[8]

The statement has to be viewed in context, which
    context includes the officer repeatedly reminding the appellant of his right to
    counsel, including virtually immediately following the above exchange where the
    officer stated:

anytime you wanna to talk to a lawyer you
    can like thats not a problem I havent got a problem with that thing is I have
    to stop the interview and put you into a private room so you can do that but at
    any time you can do that.

[9]

The trial judge reviewed the entire video
    statement and heard the evidence from the officer. The trial judge applied the
    proper legal principles and based on the whole of the evidence, he found that
    there had not been an invocation of his right to consult a lawyer. This was a
    finding open to him and we find no error in it.

[10]

For these reasons, the appeal is dismissed.

Eileen
    E. Gillese J.A.

Paul
    Rouleau J.A.

Fairburn
    J.A.


