



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Damassia, 2017 ONCA 954

DATE: 20171207

DOCKET: C61874

Laskin and Pepall JJ.A. and Gans J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Stefano Damassia

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Mabel Lai, for the respondent

Heard and released orally: November 29, 2017

On appeal from the conviction entered on July 31, 2015 by
    Justice Fletcher Dawson of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

The appellant raises three grounds of appeal from his conviction for
    sexual assault. We called on the Crown only on the first ground.

[2]

The appellant submits that the trial judge erred by failing to find a
    breach of s. 10(b) of the
Charter
. He contends that in advising him of
    his s. 10(b) rights the police officer did not tell him that he had a right to
    consult counsel in private. He concedes that under our current law s. 10(b)
    does not impose a free-standing obligation on the police to give this advice to
    a person who is detained. But relying on this courts judgment in
R. v.
    Jackson
(1993) 86 CCC (3d) 233 (Ont. C.A.) at 241, he says the obligation
    arises where detained persons do not fully understand their rights. The
    appellant says that he was not fully aware of his s. 10(b) rights and the
    officers advice fell short of what was required.

[3]

We do not agree with appellants submission. The trial judge was well
    aware that the informational component of s. 10(b) required the officer to make
    sure the appellant fully understood his right to counsel. And, as the trial
    judge found, the officer went to some length to ensure that the appellant
    understood his rights. The appellant then made an informed decision to speak to
    the police without a lawyer. The trial judge expressly found at para. 33 of his
    ruling that the appellant knew his rights, and the trial judge rejected the
    appellants assertion he did not appreciate he had a right to consult counsel
    in private. This ground of appeal fails.

[4]

We deal briefly with the other two grounds of appeal. On the second
    ground, we accept that the trial judge misstated the evidence when he said the
    complainant was not tested for the presence of any of the common date rape
    drugs. The statement of facts agreed to by the parties stipulated that the
    complainants blood and urine were sent for analysis the day after the party,
    and the analysis showed no positive findings for the presence of drugs.

[5]

But there simply was no evidence whether she was tested for drugs or, if
    she was, what drugs she was tested for. The misstatement, however, was
    immaterial. The trial judge was concerned with the complainants state of
    intoxication not with what caused it. And he found the evidence was
    overwhelming that the complainant was so intoxicated she lacked the capacity to
    consent.

[6]

On the third ground, the appellant argues that one of the reasons for
    the trial judges adverse credibility finding was illogical. The trial judge
    found that the appellant fabricated his evidence about drinking one third of a
    bottle of Jägermeister to explain his intoxication after he had sex with the
    complainant. We think this finding was open to the trial judge. But, even if it
    was not, the trial judge had other unimpeachable reasons to reject the
    appellants evidence.

[7]

The appeal is therefore dismissed.

John
    Laskin J.A.

S.E.
    Pepall J.A.

Arthur Gans
    J.


