



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the
    information relates to a young person who has received an adult sentence;

(b) in a case where the
    information relates to a young person who has received a youth sentence for a
    violent offence and the youth justice court has ordered a lifting of the
    publication ban under subsection 75(2); and

(c) in a case where the
    publication of the information is made in the course of the administration of
    justice, if it is not the purpose of the publication to make the information
    known in the community.

(3) A young person
    referred to in subsection (1) may, after he or she attains the age of eighteen
    years, publish or cause to be published information that would identify him or
    her as having been dealt with under this Act or the
Young Offenders Act
,
    chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is
    not in custody pursuant to either Act at the time of the publication.

111(1)          Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138(1)          Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985,

(a) is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.




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.M., 2020 ONCA 348

DATE: 20200604

DOCKET: C66062

Fairburn, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.M.

Appellant

Richard Litkowski, appearing as duty
    counsel

Hannah Freeman, for the respondent

Heard: May 29, 2020 by
    Teleconference

On appeal from the conviction entered on
    June 4, 2018 and the sentence imposed on October 1, 2018 by Justice Allan G. Letourneau
    of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault
    and failing to comply with a youth court order. The appellant was 16 years of
    age at the time of the incident. His brother and the complainant were 15 years
    of age.

[2]

The complainant and appellant testified at trial.
    There is no dispute that the complainant attended the appellants residence and
    whisky was consumed. Nor is there dispute that sexual activity took place or
    that the appellant had vaginal intercourse with the complainant while his
    brother placed his penis in her mouth. Nor is there dispute that the brothers traded
    positions a couple of times during the encounter in the basement of the
    appellants home. Nor is there dispute that, at some point after the sexual
    activity involving both brothers ended, the complainant and appellant were in
    the shower together and another act of sexual intercourse took place.

[3]

The sole issue at trial was whether the complainant
    consented to the sexual activity. The complainant said that none of it was
    consented to, that she cried through much of it and told them to stop.  The
    appellant maintains that it was all consented to.

[4]

The trial judge gave lengthy reasons for
    judgment, which understandably focused upon questions of credibility and
    reliability. He explained why he rejected the appellants evidence about
    consent and why he believed the complainant on this crucial point.

[5]

The appeal is predicated on three alleged
    errors.

[6]

First, the appellant argues that the trial judge
    misapprehended four points of evidence. With one exception, we do not agree
    that the points raised are properly characterized as misapprehensions of
    evidence.

[7]

For instance, the appellant argues that the
    trial judge misapprehended the evidence when he characterized a text message,
    sent by the appellant to the complainant, as an admission against interest. The
    text message read: shouldnt have tried it the second time but I stopped when
    you told me to. We do not agree that the trial judge misapprehended the
    evidence about the text message. The trial judge simply drew an available
    inference from that evidence, considered in the context of all of the evidence,
    that when the appellant acknowledged that he shouldnt have tried it a second
    time, he was acknowledging that he knew the complainant was not consenting.

[8]

The appellant also takes issue with what he
    calls the trial judges speculation, when he opined that [the complainant] may
    have reasonably thought that screaming for help, or telling the boys mother
    that her sons had just raped her, might endanger her further. This was not
    speculation. There was evidence that the appellant had told the complainant
    that his mother was a psycho. There is no misapprehension of evidence around
    this point. In any event, the impugned sentence was entirely irrelevant to the
    result. Whether the complainant raised a hue and cry during or immediately
    after the assault, was irrelevant to whether she was sexually assaulted.

[9]

The appellant also argues that the trial judge
    improperly speculated about why the appellant had sent a text message to the
    complainant shortly after the offence, suggesting that his brother had not been
    involved in the sexual activity. The appellant testified that he sent that
    message at a time when he could not recall his brothers involvement in the
    sexual activity. According to the appellant, he only recovered that memory at a
    later point in time.

[10]

The trial judge rejected that explanation and concluded
    that the text message was motivated by the appellants desire to see if it
    would cause [the complainant] to question her own recollection of the nights
    events and/or to dissuade her from contacting the police. We see no improper
    speculation in this comment. It was open to the trial judge to reject the
    appellants explanation as to why he had sent the message. It was also open to
    the trial judge to conclude that the message was sent for the exact purpose he
    articulated.

[11]

While we agree that the trial judge
    misapprehended one piece of evidence, regarding the timing of a message sent by
    the complainant to her mother, that misapprehension of evidence is immaterial
    to the verdict.

[12]

Second, the appellant argues that the trial
    judge applied uneven scrutiny to the Crown and defence evidence. We do not
    agree. In our view, the trial judge engaged in a proper individualized
    assessment of the different evidence offered by the different witnesses:
R.
    v. R.R.
,

2020
    ONCA 327, at para. 20.

[13]

One of the factors that the appellant points to
    as revealing uneven scrutiny of the evidence is how the trial judge dealt with
    the complainants evidence as to whether she changed into her shorts in the
    washroom. The appellant argues that she was inconsistent on this point and, if
    the trial judge had applied even scrutiny, this inconsistency would have
    damaged her credibility.

[14]

We do not agree that this point demonstrates
    uneven scrutiny of the evidence. This is a repeat of the argument from trial,
    an argument that the trial judge specifically dealt with and disposed of. He
    simply concluded that there was no inconsistency in the evidence. That was a factual
    conclusion that the record supported and he was entitled to arrive at.

[15]

Finally, the appellant raises other concerns
    about the trial judges credibility assessments. Credibility assessments are
    owed strong deference:
R. v. R.A.
, 2017 ONCA 714, 421 D.L.R. (4th)
    100, at para. 44. We see nothing that would cause us to interfere in those
    findings.

[16]

The appellant maintains that the trial judge
    erred when he concluded that the appellant was upset after the sexual encounter
    because he knew that he had raped the complainant and was deeply troubled
    regarding the prospects of her going to the police and reporting the rape. The
    appellant objects to the trial judges conclusion on this issue. He maintains
    that his upset was caused by the fact that his marijuana was missing and he
    realized that he had just cheated on his girlfriend. That may have been his
    position at trial, but the trial judge acknowledged and rejected it. He was
    entitled to do so and we would not interfere with that finding.

[17]

The appellant also argues that the complainant
    had a strong motive to fabricate the allegations, particularly given that she
    was confronted by the appellants girlfriend about the sexual encounter the
    morning after it occurred and before she had reported anything. Again, the
    trial judge was alive to this defence argument. He specifically addressed it.
    He stated the law on motive to fabricate correctly. He accepted the
    complainants evidence that she did not disclose the offence before her
    communications with the appellants girlfriend because she was still
    processing how to deal with the matter. This was a conclusion available on
    the record and one that is well explained in the reasons.

[18]

The appeal is dismissed.

Fairburn
    J.A.

I.V.B.
    Nordheimer J.A.

Harvison
    Young J.A.


