



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. J.P., 2020 ONCA 162

DATE: 20200302

DOCKET: C65242

Lauwers, Trotter and Fairburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.P.

Appellant

Mark C. Halfyard, for the appellant

Eric W. Taylor, for the respondent

Heard: February 11, 2020

On appeal
    from the conviction entered on January 4, 2018 by Justice J. Christopher
    Corkery of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of assault, assault
    with a weapon, uttering a threat, unlawful confinement, choking, and sexual
    assault. He received a six month and three day sentence, concurrent on each
    count.

[2]

The appellant had been in an on-again/off-again
    relationship with the complainant. On the night the offences occurred, the
    appellant insisted that the complainant meet him to discuss her previous
    involvement with another man. It was clear from the appellants text messages
    that he was angry with the complainant.

[3]

The trial judge reviewed the evidence in detail.
    The complainant went to her friend L.A.s home on September 17, 2015. She later
    left L.A.s home to meet the appellant at a nearby park. As she approached him,
    he threw a lacrosse ball toward her head. He then insisted that they go to his
    mothers house where he lived. The complainant testified that the appellant
    repeatedly struck her on the legs with his lacrosse stick as they were walking
    to the house. She suffered bruises to the back of her legs.

[4]

The complainant testified that, when they
    arrived at the appellants house, they went to his basement bedroom, where a
    further altercation occurred. According to the complainant, among other things,
    the appellant broke her electronic devices against the wall of his bedroom, threw
    her on the bed, slapped her face, pinned her to the bed with his knees, broke
    her bracelet, grabbed her hip piercing, jabbed her in the vagina with a
    television remote, and spit in her face. He would not let her leave over the
    course of the entire night. The complainant did not leave the appellants home
    until mid-afternoon the next day. She then proceeded to L.A.s home, told L.A.
    what had happened and then went to the police.

[5]

The appellant denied striking the complainant
    with his lacrosse stick, grabbing her hair and smashing her electronics. He
    denied hitting her, assaulting her with the remote and throwing her on the bed.
    He had a very different version of events. He attributed the bruises on her
    arms to an episode of consensual rough sex earlier in the week. While he agreed
    that he sent certain incriminating text messages to the complainant, such as
    [d]ont make me drag you, he explained that they were sent in frustration and
    he knew the complainant would not take them seriously.

[6]

The trial judge
    made these findings:

In considering just the evidence of [the
    appellant] there is no explanation provided by him for the bruises of [the
    complainant], apart from her arms. [The complainants] evidence, on the other
    hand, is corroborated first by the existence of these bruises and by the
    evidence of [the witness] that the bruises were not present the evening before.
    The only reasonable explanation is that these bruises occurred between the
    departure from [the witnesss] house, when [the complainant] went to meet [the
    appellant], and when she returned to [the witnesss] house the next day. The
    bruises are wholly consistent with what [the complainant] says occurred and I
    accept that they did occur as a result of her being assaulted by [the
    appellant].

[7]

The indictment
    charged assault, without specifying the details, and assault with a weapon,
    being the lacrosse stick. In light of the nature of the charges, it was open to
    the trial judge to convict the appellant of assault and assault with a weapon
    based on the bruising to the complainants legs and arms.

[8]

The appellant challenges the trial judges credibility
    findings on two grounds.

[9]

First, he submits that the trial judge
    failed to address a material conflict in the evidence: t
he actions and assaults in the bedroom alleged by the complainant
    could not possibly have
occurred
without being
    heard by his mother and her partner. These included his destruction of her electronic
    devices against the wall, several physical assaults including choking her, pinning
    her to the bed with his knees on her arms, her allegation that she cried out
    for the appellants mother, followed by 20 or more blows to her face with the
    heel of his palm which she described as hard strikes.

[10]

The disputed events took place in a small
    bungalow in which the quarters were very close and sound carried easily. The appellants
    bedroom was immediately below the kitchen. The appellants mother and her
    partner were in the kitchen for at least some of the time, particularly at the
    outset, when the encounter in the bedroom between the appellant and the
    complainant appeared to be the most heated and physical.

[11]

The trial judge
    was alive to the noise issue. He said in an exchange with counsel: I can
    anticipate much will turn on my determination of what was heard by the
    appellants mother and her partner. Being alive to the issue, the trial judge
    specifically invited submissions on this point.

[12]

The defence submitted
    at trial that in order to find the appellant guilty of the assaults in the
    house, the trial judge would have to reject outright the couples evidence 
    specifically, that they heard nothing. Quite simply, according to the defence,
    the house was too small for the events as described by the complainant to have
    occurred without anyone hearing something.

[13]

The trial Crown
    submitted that the complainant, who said things were not loud in the bedroom,
    should be believed. Even the appellant testified that the tone was a conversational
    one, not loud while they were arguing.

[14]

The trial judge
    summarized the defence position during the Crowns submissions: The defence is
    saying when I look at this as a whole all of the different things that are
    happening here including her statement to the police that theres no way that [the
    appellants mother] could not have heard. I must infer that it didnt happen
    because had it happened [she] would have heard something. The trial judge later
    repeated what he understood to be the Crowns argument, that its just one
    factor I take into account.  The Crown is trying to say, well, no, its not as
    favourable to the defence, is that its simply a neutral factor.

[15]

In
his
reasons, the trial judge
found
    the appellants mother and her partner to be credible and reliable, and
    summarized their testimony:

Simply put, they both testified that they
    would not have hesitated to respond to any noise or shout coming from [the
    appellants] room that was out of the ordinary. But they heard nothing that
    evening that concerned them.

[16]

The trial judge
    did not further address the noise issue. The appellant argues that the trial
    judge was duty bound to address and reconcile the issue, particularly in light
    of the fact that he found the appellants mother and her partner credible.

[17]

The appellants
    second credibility argument relates to the complainants evidence that the appellant
    struck her in the face 20 times. The appellant asserts that this should have
    resulted in bruising, but there was nothing more on her face than a small
    scratch the complainant said the appellant inflicted. The trial judge did not
    address this argument in his reasons.

[18]

The appellant
    argues that the failure to address and reconcile these clear concerns over the
    complainants credibility constitutes reversible error. While he acknowledges
    that the trial judge could accept the complainants evidence despite these
    clear concerns for credibility, he argues that they were so fundamental to the
    resolution of her credibility that a failure to address them leaves the
    appellant without any ability to assess the basis upon which he was convicted.

[19]

We do not find
    these omissions in the trial judges reasons to be fatal to the convictions. The
    case turned on the credibility assessments of the complainant and the appellant.
    The most significant findings leading to the convictions were that the appellant
    caused the complainants bruises by striking her with the lacrosse stick and by
    pinning her arms down with his knees. The presence of these bruises was capable
    of confirming the complainants account. As the trial judge noted, L.A.s
    evidence provided powerful corroboration of the complainants version of
    events. In particular, L.A. saw the complainant in shorts and a tank top just
    before she departed to see the appellant. She was not bruised at that time.
    L.A. saw the complainant just after she left the appellants residence, dressed
    in the same clothing, and showing bruising to a portion of her body. L.A.s
    evidence was not challenged. As she said: I do remember just being overwhelmed
    by the little marks that were on her body at the time. The ones I do remember
    were the big bruises on her legs and those ones lasted for a while.

[20]

Moreover, there
    were all manner of reasons why the complainant may not have experienced serious
    bruising to her face, including how and where she was struck in the face. While
    the exhibits with photos of the complainants face do not show obvious bruising,
    they reveal scratch marks consistent with her account. In these circumstances,
    we do not accept that the trial judges failure to deal with this issue and how
    it impacted on the complainants credibility is fatal to the conclusion reached
    by him.

[21]

In any event,
    the trial judge did not rest the assault and assault with a weapon conviction
    on the blows to the complainants face. Those charges were sustained simply on
    the basis of the walk toward the house and the bruising on the complainants
    legs.

[22]

In addition, we
    agree with the observation made by the trial judge during submissions that the
    noise issue was just one factor in the credibility analysis. The evidence of
    both the complainant and the appellant was that their arguing was not loud. The
    mother and her partners failure to hear anything did not mean that nothing
    happened. It means that they did not hear anything. In these circumstances, the
    failure to address the issue does not constitute reversible error.

[23]

The trial
    judges credibility findings are entitled to deference; he made no palpable and
    overriding errors.

[24]

The appeal is
    dismissed.

P.
    Lauwers J.A.

Gary
    Trotter J.A.

Fairburn
    J.A.


