



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. H. M. R. S., 2020 ONCA 209

DATE: 20200316

DOCKET: C62971

Watt, Paciocco and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

H.M.R.S.

Appellant

H.M.R.S., in person by video conference

Amy Ohler, duty counsel

Jessica Smith Joy, for the respondent

Heard: March 11, 2020

On appeal from the conviction entered on November 20,
    2015 and the sentence imposed on October 14, 2016 by Justice John S. Fregeau of
    the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of aggravated sexual
    assault contrary to s. 273(1) of the
Criminal Code
. He was sentenced to ten years incarceration, less credit for
    presentence custody. He appeals from conviction and sentence.

[2]

The complainant testified that she was in the
    company of a few people, including the appellant, on the evening of the alleged
    offence. A lot of alcohol had been consumed. They eventually ended up at the
    appellants residence, where even more alcohol was consumed. The complainant fell
    asleep fully clothed but awoke to find the appellant removing her clothes. She
    was turned onto her stomach and vaginally penetrated from behind, while being
    strangled with what she believed to be a cloth. She thought she was going to
    die, saw stars and then everything went black. She reported the incident to
    the police the following day.

[3]

The first police officer who saw the complainant
    when she arrived at the police station testified that she immediately noticed
    that the complainants eyes were bleeding or they looked like they were
    bleeding. The officer also said that the complainant had such severe petechial
    hemorrhaging that the officer had only previously seen that condition in
    sudden death cases.

[4]

In appealing his conviction, the appellant
    argues that his trial counsel was ineffective and that this resulted in a
    miscarriage of justice. He raises numerous examples of that ineffectiveness, which
    can be grouped under the following categories. He contends that his counsel
    failed to:

·

conduct proper cross-examinations of Crown witnesses;

·

call certain witnesses to rebut the Crown evidence, including the
    evidence of a cab driver and others who could have testified about prior sexual
    encounters between the appellant and complainant;

·

elicit an expert opinion to rebut the Crown expert; and

·

explore whether photos of the complainants injuries had been
    tampered with.

[5]

The appellant also suggests that his counsel,
    Crown counsel and the trial judge may have discussed matters outside of his presence.
    Finally, he suggests that trial counsel may well have had a conflict of
    interest in representing him because she may have been involved in a previous unrelated
    case involving a family member of his.

[6]

We see no basis upon which to set aside the
    conviction. The record does not support the appellants suggestions of
    incompetence. This was a strong Crown case that rested on credibility findings that
    were open to the trial judge to make. The complainants credibility was
    entirely supported by the forensic evidence, including the facial and neck
    injuries resulting from strangulation. Moreover, much of the evidence that the
    appellant suggests should have been elicited by his counsel, either through
    cross-examination or through the calling of other witnesses, was inadmissible
    pursuant to the collateral facts rule, or constituted presumptively
    inadmissible evidence of hearsay or prior sexual history evidence.

[7]

The expert evidence was non-controversial. The
    witness testified about how strangulation can cause death and secondary
    injuries, such as subconjunctival hemorrhages, ligature bruising and facial
    petechiae, all of which are seen in the photos of the complainants injuries.

[8]

We see no basis upon which to suggest that the
    photos of the complainant, on which the expert based his opinion, have been
    tampered with. Indeed, what is seen in the photos is supported by the testimony
    of the police officer who saw the complainant upon her arrival at the police
    station.

[9]

There is no evidence to support the suggestion that
    defence counsel met with the Crown and trial judge outside of the appellants
    presence. As for the suggestion of conflict, it is the appellants onus to
    establish one. The record does not support his position on conflict.

[10]

Duty counsel assisted the appellant with his
    sentence appeal, arguing that the trial judge erred in treating the appellants
    lack of remorse as an aggravating factor. There is no dispute that an absence
    of remorse does not constitute an aggravating factor. Crown counsel argues
    that, reading the reasons as a whole, the trial judge should be interpreted as
    suggesting that the appellants lack of remorse and lack of insight into the
    offence demonstrated his poor rehabilitative prospects.

[11]

While it is not entirely clear to us how the
    trial judge was using the reference to the absence of remorse, the
    appellants submission is not without some force, particularly given that the
    reference to the lack of remorse falls squarely within the list of aggravating
    factors. In our view, though, even if the trial judge incorrectly used the lack
    of remorse in this way, it had no impact on the sentence:
R. v.
    Lacasse
,
2015 SCC 64, [2015] 3 S.C.R. 1089,
    at paras. 11 and 44.
There were six other serious aggravating
    factors, the most serious being that the victim was strangled so badly that she
    was at risk of dying. Considering the seriousness of the offence, the global
    sentence of ten years was appropriate.

[12]

Duty counsel also submitted that the judge erred
    in identifying the primary sentencing objectives as deterrence and
    denunciation. She argues that these objectives are not entirely consistent with
    the judges acknowledgment of the serious
Gladue

factors relevant to the appellants case. The appellant himself also
    submitted that the sentencing judge had not read the
Gladue

report. There is nothing to support the appellants submission that
    the judge had not read the report. Given the seriousness of the offence,
    deterrence and denunciation were appropriate sentencing objectives, and the trial
    judges acknowledgment of this did not render the sentence unfit.

[13]

The conviction appeal is dismissed. Leave to
    appeal sentence is granted, but the sentence appeal is dismissed.

David Watt J.A.

David M. Paciocco J.A.

Fairburn J.A.


