



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Johnson, 2017 ONCA 904

DATE: 20171123

DOCKET: C62844

Watt, Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Benjamin John Johnson

Appellant

Alexander Ostroff, for the appellant

Rebecca DeFilippis, for the respondent

Heard and released orally: November 21, 2017

On appeal from the conviction entered on September 1,
    2016 by Justice Kirk W. Munroe of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION


[1]

The appellant appeals his conviction of sexual assault entered by a
    trial judge at the conclusion of a trial without a jury.  The argument advanced
    in this court is that conviction is unreasonable and founded on
    misapprehensions of the evidence adduced at trial.

[2]

The trial judge provided lengthy and thoughtful reasons for judgment. He
    found that the complainant, by virtue of her intoxication, lacked the capacity
    to consent to the sexual activity in issue.

[3]

He rejected, as unworthy of belief, the appellants testimony that the
    complainant was fine and had initiated some sexual conduct.

[4]

The appellant denied having had sexual intercourse with the complainant,
    as she testified. In this respect, his evidence was contradicted by forensic
    evidence.

[5]

In claiming that a verdict is unreasonable, an appellant must
    demonstrate that the verdict is one that no trier of fact could reasonably have
    rendered in the circumstances, or that the trial judge made findings of fact or
    drew inferences that were plainly contradicted by the evidence relied upon to
    ground the finding, or that are incompatible with evidence that had not been
    contradicted or rejected.

[6]

In our view, there was ample evidence upon which the trial judge could
    conclude that the Crown had proven the essential elements of the offence
    charged beyond a reasonable doubt, in particular, that the complainant lacked
    the capacity to consent to the sexual activity in issue. Nor are we at all
    persuaded that the trial judge misapprehended any evidence that was material to
    his conclusion, that the appellants guilt had been proven beyond a reasonable
    doubt.

[7]

The appeal is dismissed.

David Watt J.A.
C.W. Hourigan J.A.
B.W. Miller J.A.




