



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. N.T., 2021 ONCA 754

DATE: 20211025

DOCKET: C66755

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N.T.

Appellant

John Hale, for the appellant

Rebecca Schwartz, for the respondent

Heard: October 19, 2021 by video conference

On appeal from the convictions entered by Justice Michel
    Z. Charbonneau of the Superior Court of Justice on April 3, 2019.

REASONS FOR DECISION

[1]

Following a judge alone trial, the appellant was convicted of one count
    of sexual interference and one count of assault but acquitted of sexual assault
    and invitation to sexual touching. All charges related to the appellant's
    step-daughter.

[2]

The appellant testified at trial and denied the incident that was the
    foundation for the sexual interference and sexual assault charges. Although he
    acknowledged physical contact with the complainant during the incident forming
    the subject matter of the assault charge, his version of the event raised s. 43
    of the
Criminal Code
, R.S.C. 1985, c. C-46, as a potential defence.

[3]

The appellant raises two issues on appeal.

[4]

First, the appellant submits that the trial judges reasons are
    insufficient for several reasons. The appellant contends that the reasons fail
    to explain how the trial judge resolved the inconsistent versions of events, why
    he rejected the appellants evidence or set out any pathway to conviction. The
    reasons make only passing reference to the appellants evidence and fail to
    apply
W.(D.)
.
[1]
Further, the reasons do not address the elements of the offences or the s. 43
    defence. Overall, the deficiencies in the reasons render them immune to appellate
    review.

[5]

Second, the appellant submits that the trial judges reasons for
    sentence demonstrate he intended to convict the appellant of the second count
    of the indictment, sexual assault, and acquit him of the more serious charge of
    sexual interference.

[6]

We do not accept these submissions.

[7]

Regarding the physical assault, the trial judge gave extensive reasons
    explaining why he accepted the evidence of the complainant and her mother and
    rejected the challenges to their credibility raised by the defence. Although
    the appellant acknowledged physical contact with the complainant during the
    incident forming the subject matter of the assault charge, he denied the level
    of angry physical force described by the complainant. Instead, he explained he
    intervened to prevent escalation of a confrontation between the complainant and
    her mother and relied on s. 43 of the
Criminal Code
as a defence. The
    mothers evidence concerning the assault supported the complainant's evidence
    and undermined the appellant's account.

[8]

Contrary to the appellants submissions, the trial judge expressly
    adverted to
W.(D.)
when addressing the assault. If not explicit, it is
    implicit from the trial judges reasons that he rejected the appellants
    account of the assault because he accepted the Crown's evidence. On the
    complainants version of the assault, it was unnecessary that the trial judge
    go into greater detail concerning why a s. 43 defence was not available.

[9]

Concerning the sexual interference offence, the appellant denied that
    the incident described by the complainant occurred. Once again, if not
    explicit, it is implicit in the trial judges reasons that he rejected the
    appellants denial because he accepted the complainants testimony. Further, we
    are satisfied that a finding of sexual purpose is the only reasonable inference
    arising from the trial judges description of the sexual touching incident.
[2]

[10]

The trial judges oral reasons were in large measure a response to the
    submissions that were made to him the previous day. On our review of the record,
    the trial judges path to conviction is apparent. He found guilt beyond a
    reasonable doubt based on a considered and reasoned acceptance of the Crowns
    evidence:
R. v. J.J.R.D.
(2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at
    paras. 53-55, leave to appeal refused, [2007] S.C.C.A. No. 69.

[11]

As to the second issue, we reject the appellant's submission that the
    reasons for sentence demonstrate the trial judge intended to convict of sexual
    assault and not sexual interference for the breast cupping incident. A fair
    reading of the sentencing reasons demonstrates that after initially referring explicitly
    to the sexual interference offence, the trial judge subsequently used the term sexual
    assault as a shorthand to describe it. As we have explained, we are satisfied
    that the trial judge made a finding of sexual purpose in relation to the breast
    cupping incident in his reasons for decision. We do not read the reference to
    absence of a sexual purpose in his reasons for sentence as referring to that
    incident.

[12]

Finally, we accept the Crown's submission that the acquittal on the
    sexual assault charge, which also related to the breast cupping incident, was patently
    an error in law and did not render the verdicts on the sexual interference and
    sexual assault counts inconsistent:
R. v. Plein
, 2018 ONCA 748, 50
    C.R. (7th) 41.

[13]

Based on the foregoing reasons, the appeal is dismissed.

Janet Simmons J.A.

P. Lauwers J.A.

G. Pardu J.A.





[1]

R. v. W.(D.)
, [1991] 1 S.C.R. 742.



[2]

The trial judge said:

However, on one
    occasion it was different. She has indicated she was in front of the sink and
    that he groped her breast, not briefly, but for several seconds he actually
    groped her breast and in a sexual manner.


