



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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

6.

(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

7.

(a) as soon as feasible, inform the victim of their right to make an
    application for the order; and

8.

(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. St. Roch, 2016 ONCA 530

DATE: 20160704

DOCKET: C59637

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christian St. Roch

Appellant

Joseph Di Luca, for the appellant

Jessica Smith Joy, for the respondent

Heard and released orally: June 22, 2016

On appeal from the conviction entered on June 13, 2014 by
    Justice Hugh K. OConnell of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault by a judge sitting without
    a jury.  He appeals on three grounds:

1.       The trial judge erred in
    finding that there was           no air of reality to the defence of honest but
              mistaken belief in consent;

2.       The trial judge misapprehended
    the evidence           of when the complainant said: this is not going to       happen,
    and;

3.       The trial
    judge erred in his reliance on the complainants demeanour in assessing her
    credibility.

We would not give effect to these grounds.

[2]

The trial judge gave lengthy and detailed reasons for his decision. He instructed
    himself on the rule in
R. v.
W. (D.)
, [1991] 1 S.C.R. 742,

and
on how to assess the credibility of the witnesses. He
    specifically found that he believed the complainant and disbelieved the
    appellant.  It was not an
R. v.
D. (J.J.R.)
(2006),
215 CCC (3d)
    252,
type of case where he disbelieved the appellant because he believed
    the complainant.

[3]

On the first issue, the trial judge was alive to the issue of honest but
    mistaken belief in consent and specifically found that the appellant knew that
    the complainant was not consenting to intercourse and oral sex on the Saturday
    morning.  The appellant testified that they had had consensual sex the night
    before.  The trial judge rejected that assertion as completely untrue.  Had that
    story been accepted by the trial judge, it may have been a basis to consider
    the defence as plausible in respect of sex on the Saturday morning.  However,
    having rejected that story as untrue, that undermined the basis for the
    appellant to believe that there was consent on Saturday morning when there was
    not.

[4]

Counsel submits that on the complaints own evidence of events on the
    Saturday morning, one can construct a version of the events that gives an air
    of reality to the defence of honest but mistaken belief in consent by the
    appellant.  We agree with the Crown that the differences in the two versions
    given by the complainant and the appellant, particularly of the actual forced
    intercourse on Saturday morning, belie any such narrative.  The trial judge
    found that the appellant knew that the complainant was not consenting.  That
    finding forecloses this defence.

[5]

On the second issue, the Crown acknowledges the misstatement by the
    trial judge regarding the complainants statement to the appellant that it is
    just not going to happen, as having occurred Friday night and not on the
    Saturday.  We agree with the Crown that that error did not impact the trial
    judges conclusion as he did not refer to it in his analysis of consent or in
    his analysis of honest but mistaken belief in consent.

[6]

The third alleged error is that the trial judge over-emphasized the
    complainants post-event demeanor.  We agree with the Crown that the trial
    judge was entitled to rely on this evidence in his assessment of her
    credibility.  Furthermore, he did not use her demeanor to decide whether there
    was an air of reality to the defence of honest but mistaken belief in consent
    by the appellant.

[7]

For the above reasons, the appeal is dismissed.

Doherty J.A.

K. Feldman J.A.

David Brown J.A.


