



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C.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    the victim shall not be published in any document or broadcast or transmitted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. P.G., 2020 ONCA 588

DATE:  20200921

DOCKET: C68036

Fairburn A.C.J.O., MacPherson
    and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.G.

Appellant

P.G., acting in person

Mark Halfyard, appearing as duty
    counsel

Andrew Hotke, for the respondent

Heard: September 8, 2020 by
    video conference

On appeal from the convictions entered
    on December 9, 2019 and the sentence imposed on February 5, 2020 by Justice Kelly
    A. Gorman of the Superior Court of Justice.

REASONS FOR DECISION

[1]

In December 2019, the appellant was convicted of
    sexual assault, forcible confinement and assault by Gorman J. of the Superior
    Court of Justice following a trial in Windsor. In February 2020, the appellant
    received a custodial sentence of two years less a day and s. 109 firearms (10
    years) and SOIRA (20 years) orders.

[2]

The appellant appeals the convictions and the
    sentence.

[3]

The appellant and the complainant met on
    Instagram and then in person. The appellant was 19 years old and the
    complainant was 17 years old.

[4]

On April 21, 2017, the appellant and the
    complainant were arguing by text message about the complainants plan to attend
    a local festival. The appellant invited the complainant to his house to
    continue the discussion in person. Later, they went, along with friends, to a
    bowling alley. At the end of the evening, the complainant drove the appellant back
    to his house and she accepted his invitation inside.

[5]

Once inside, the appellant and the complainant
    went to the appellants bedroom. According to the complainant, she agreed to
    cuddle but within a few minutes the appellant was trying to have sex. She
    refused. The appellant tried to take off her clothes and kept telling her that
    he wanted to have sex. She tried to push off the appellant but he told her to
    stop fighting because he was stronger. He put his penis in her vagina and told
    her that she was not allowed to leave and not permitted to go to the festival.
    He began wrestling with her, held her hands above her head, and called her
    names.

[6]

The complainant then heard a text alert and
    asked the appellant to permit her to respond to it or to go to the bathroom.
    The appellant told her again that she was not allowed to leave. She was
    sobbing. The appellants parents entered the room, told the appellant to give
    the complainant her clothes, and told the complainant she could leave the room.

[7]

The appellants father walked the complainant to
    the door. She told him that she would not press charges. She testified that she
    said this because she thought she would not otherwise be allowed to leave.

[8]

The trial judge found the complainant to be
    entirely credible  her evidence [was] internally consistent and not [overreaching].

[9]

The appellant testified at the trial. The trial
    judge said this about his testimony:

I found the accused to be incredulous. On many
    occasions he went out of his way in an effort to paint [the complainant] in a
    negative light. His testimony that she was drinking at the bowling alley,
    driving poorly, and that she banged her head while exiting the vehicle was
    entirely self-serving.

[10]

Against this backdrop of her assessments of the
    two principal witnesses, the trial judge convicted the appellant of the three
    offences with which he had been charged.

[11]

The appellant, assisted by duty counsel,
    advances three arguments on the conviction appeal.

[12]

First, the appellant points out that the
    complainant was 17, a child, when the alleged sexual assault, confinement, and
    assault took place. She was 19, an adult, when she testified at the trial. In
    her reasons, the trial judge said:

With these principles in mind, it should be
    noted that [the complainant] was 17 years old at the time of the allegations.
    While not a very young child, she was a child nonetheless. As the court stated
    in
R. v. B.(G.)
, [1990] CarswellSask 20, at para. 56:

While children may not be able to recount
    precise details and communicate the when and where of an event with exactitude,
    this does not mean that they have misconceived what happened to them and who
    did it.



Applying the law to the evidence, I found [the
    complainant] to be entirely credible. She testified about matters that occurred
    two years ago when she was 17 years old. I agree with the submission of the
    Crown that she did her best. I found her evidence to be internally consistent
    and not [overreaching].

[13]

Based on this passage, the appellant contends
    that the trial judge erred by giving the complainant testimonial latitude on
    account of her age by improperly treating her as a child witness when, in fact,
    she testified as an adult.

[14]

We are not persuaded by this submission. In our
    view, in this passage the trial judge was simply stating that the complainant
    was a child  and indeed not a very young child  when the assaults and
    confinement occurred; she was not saying that the complainant was a child when
    she testified or that she was treating the complainants testimony as that of a
    child witness. All the trial judge said, accurately, was: [The complainant]
    testified about matters that occurred two years ago when she was 17 years old.

[15]

Second, the appellant submits that the age
    difference between the appellant (19 at the time of the events) and complainant
    (17) led to the trial judge applying a different standard of scrutiny to their
    evidence.

[16]

We do not accept this submission. It is anchored
    in the same assertion as that made in the appellants first ground of appeal:
    the trial judge treated the complainant as a child witness. Since we have
    rejected that assertion, it follows that we are satisfied that the trial judge
    considered the appellants and the complainants testimony in a proper and
    balanced fashion.

[17]

Third, the appellant asserts that the trial
    judge erred in finding collusion between the appellant and his parents, both of
    whom testified.

[18]

We disagree. The trial judge made no finding of
    collusion. All she did was point to the similarity of their evidence to support
    her rejection of the appellants testimony that he had not talked to his
    parents about the case.

[19]

Neither the appellant nor duty counsel made submissions
    about the sentence.

[20]

The conviction and sentence appeals are
    dismissed.

Fairburn A.C.J.O.

J.C. MacPherson J.A.

S. Coroza J.A.


