



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. A.R., 2018 ONCA 738

DATE: 20180910

DOCKET: C63688

MacPherson, Huscroft and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.R.

Appellant

Brian H. Greenspan and Michelle M. Biddulph, for the
    appellant

Katie Doherty, for the respondent

Heard: September 6, 2018

On appeal from the conviction entered on February 27,
    2017 and the sentence imposed on May 12, 2017 by Justice Jennifer Woollcombe of
    the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant A.R. was convicted of six counts of sexual assault, two
    counts of uttering threats, and two counts of assault. The appellant received a
    global sentence of four years for these offences. At the conclusion of the
    hearing, we dismissed the appeal with reasons to follow. We now provide those
    reasons.

[2]

The various charges arose from allegations of domestic violence
    committed by the appellant against his wife (now ex-wife) L.R. between 2011 and
    2013. The trial lasted seven days and involved three witnesses.

[3]

The Crown called L.R. and L.R.s mother, who testified about the various
    allegations. Hundreds of text messages exchanged between the appellant and the
    complainant during the relevant time frame were introduced. Two police
    occurrence reports were also introduced on consent.

[4]

The appellant did not testify. He called one witness, his cousin F.D.,
    who gave evidence about an evening meeting involving A.R., L.R. and A.R.s
    parents that post-dated the time frame of the events giving rise to the
    charges.

[5]

The appellant does not challenge his convictions on the two counts of
    uttering threats. He appeals the convictions on the eight counts of sexual
    assault and assault. He also appeals his sentence. However, he concedes that,
    if the conviction appeal is dismissed, then his sentence should also be
    dismissed.

Conviction Appeal

[6]

On the conviction appeal, the appellant, especially in oral submissions,
    advanced two principal grounds of appeal.

[7]

First, the appellant contends that the trial judge erred by failing to
    properly scrutinize the complainants evidence. He makes two submissions on
    this issue.

[8]

The appellant submits that the trial judge failed to recognize the true
    extent of the complainants evasiveness in her testimony. He says that L.R.s
    evasiveness extended beyond questions about the alleged sexual assaults to
    encompass any questions that potentially painted her in a negative light.

[9]

We are not persuaded by this submission. The trial judge was alive to
    the need to carefully assess the credibility and reliability of the
    complainants evidence. She was not uncritical of the complainants testimony.
    For example, she said:

I agree with defence counsel that L.R.s perspective about the
    fighting between her and the accused seems to be that everything was his fault
    and that she was blameless. I agree that in the text messages she berated the
    accused, often repeating the same issues over and over. In her evidence, she
    did not seem to take any responsibility for the fights.

I take from this that the complainant lacked insight into the
    extent of the marital issues that they were having and that her perspectives
    were not always, when viewed objectively, fair or correct. However, this does
    not lead me to reject her evidence. Rather, it reinforces for me the need to
    approach her evidence with particular care.

[10]

Against
    the backdrop of this caution, the trial judge was entitled to find that L.R.s
    account of the various incidents giving rise to the ten counts in the
    indictment was believable. On each count, the trial judge gave reasons for
    accepting the complainants testimony. We do not fault her analysis or
    conclusions on the various counts.

[11]

On
    this issue, the appellant also asserts that the trial judge erred by not
    addressing a police occurrence report dated January 5, 2014 which, the
    appellant says, sharply contradicts the testimony of both the complainant and
    her mother about what they said to police that day.

[12]

We
    do not accept this submission. The police occurrence report did not relate to
    any of the 10 counts in the indictment; rather, it involved an incident several
    months after the events relating to the last count in the indictment. Moreover,
    any discrepancies between L.R.s testimony and the police officers report
    about their meeting on that date are, in our view, slight and trivial.

[13]

Second,
    the appellant submits that the trial judge applied different standards of
    scrutiny to the testimony of the complainant and her mother, the Crown
    witnesses, and F.D., the defence witness.

[14]

We
    disagree. F.D. was not a witness who testified about any of the 10 incidents
    giving rise to the various criminal charges. He was not present at any of them.
    Rather, he testified about a family meeting that is almost entirely peripheral
    to those charges. Even if we were to accept that the trial judge unfairly
    rejected his evidence, it would not have any impact on the central issues that
    the trial judge had to resolve.

Sentence Appeal

[15]

In
    light of our disposition of the conviction appeal, the sentence appeal does not
    arise.

Disposition

[16]

The
    appeal is dismissed.

J.C. MacPherson J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


