



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Cooper, 2019 ONCA 829

DATE: 20191018

DOCKET: C66042

Watt, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashdon Cooper

Appellant

Paul J.I. Alexander, for the appellant

Erica Whitford, for the respondent

Heard and released orally:
    October 7, 2019

On appeal from the conviction entered on
    May 7, 2018, and the sentence imposed on August 14, 2018, by Justice John
    McInnes of the Ontario Court of Justice.

REASONS FOR DECISION


[1]

After a trial before a judge of the Ontario
    Court of Justice, the appellant was convicted of sexual interference, invitation
    to sexual touching, and breach of recognizance arising out of an approximately
    two-week-long relationship with a 14-year-old first year high school student.
    The appellant was 23 years of age.

The Background Facts

[2]

The complainant gave evidence about the history
    of her relationship with the appellant. She described its beginnings, its swift
    progression to sexual intercourse, and repeated occurrences of sexual
    intercourse and related sexual activity, much of it in the appellants motor
    vehicle, over the following ten days to two weeks. Her account was vigorously
    challenged in cross-examination.

[3]

The defence position at trial was that the
    events described by the complainant never took place. The complainant had never
    been in the appellants motor vehicle. No sexual relationship of any kind had
    occurred. The appellant did not testify.

The Grounds of Appeal

[4]

The appellant advances two grounds of appeal
    against his conviction. He says that the trial judge erred:

i.

in failing to address inconsistencies and conflicts
    in the evidence; and

ii.

by drawing an inference of guilt from circumstantial evidence
    without considering whether the underlying facts from which that inference was
    drawn were properly established.

Discussion

[5]

In our view, the trial judges reasons, taken as
    a whole, grappled appropriately with the inconsistencies in the complainants
    evidence, and as between her evidence and the testimony of R.D. and W.R., the
    appellants then girlfriend.

[6]

The record at trial furnishes ample confirmation
    of the core of the complainants testimony. In particular, the significant
    number of communications passing between the parties during the period of the
    relationship; the complainants accurate description of the appellants
    apartment; her similarly accurate description of the appellants vehicle, in
    which she alleged several of the acts took place; and the confirmation afforded
    by the testimony of R.D.

[7]

The appeal from conviction is dismissed.

[8]

Leave to appeal sentence is granted, and the
    sentence varied to the extent that the victim surcharge imposed at trial is set
    aside.

David Watt J.A.

P. Lauwers J.A.

David M. Paciocco J.A.


