



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. M.B., 2018 ONCA 399

DATE: 20180424

DOCKET: C62961

Feldman, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.B.

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Nancy Dennison, for the respondent

Heard and released orally: April 19, 2018

On appeal from the judgment of Justice T. Bielby of the
    Superior Court of Justice, sitting without a jury, dated October 18, 2016.

REASONS FOR DECISION

[1]

The appellant appeals from his
    conviction for sexual assault.

[2]

The appellant submits that the trial judge erred in his credibility
    analysis of the complainants evidence. In particular, the appellant takes
    issue with the trial judges explanation for the major inconsistency in the
    complainants description of her position when she woke up to the assault: on
    one version, she woke up on her back; on the other version, she woke up on her
    stomach and was turned over.

[3]

The appellant advances two arguments. First, the trial judge
    impermissibly relied on the scientific concept of memory fragmentation caused
    by alcohol consumption without the support of expert evidence. Second, it was
    unfair for the trial judge to make this finding without giving counsel an
    opportunity to address it.

[4]

We disagree.

[5]

The trial judge carefully reviewed the complainants evidence and was
    alive to its frailties. The trial judge accepted the complainants explanation
    for her poor memory and found that it did not affect her credibility in
    relation to her core memory of the sexual assault.

[6]

We do not read the trial judges use of the words memory fragmentation
    as a scientific term. Rather, he was summarizing the complainants own
    explanation for her inconsistent and sometimes incoherent memory of the
    relevant events, which she attributed to her excessive alcohol consumption.  It
     is no more than a finding, based on the evidence, that on both occasions when
    she described what happened, the complainant was unable to consistently access
    from her memory some of the details of what occurred on the night of the
    incident, because of her intoxication.

[7]

Because these findings were open to the trial judge and given that the
    effect of the complainants intoxication was a significant issue at trial,
    there was no unfairness.

[8]

The appellant submits further that the trial judge erred in failing to
    address the complainants refusal to provide her cellphone to the police to
    attempt to recover the deleted text messages that she said the appellant sent
    to her the day following the assault.

[9]

The complainant testified that the appellant sent her texts asking her
    not to say anything or tell anyone that he had raped her. When asked in
    cross-examination why she did not give her cellphone to the police, the
    complainant responded that she just didnt. During her re-examination, the
    complainant testified that she did not want to give her cellphone to the police
    because she understood the police would keep it for months.

[10]

We
    do not accept this submission.

[11]

First,
    we do not see this issue as a material problem that the trial judge was
    required to address. The trial judge dealt with the more important issue of the
    reason for the complainants deletion of the text messages, accepted her
    explanation of humiliation and embarrassment, and determined that the deletion
    did not affect her credibility. Moreover, there was no certainty that the
    police could have retrieved the text messages.

[12]

Accordingly, the appeal is dismissed.


K. Feldman J.A.

L.B. Roberts J.A.

G.T. Trotter J.A.


