



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that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6,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that could identify the victim shall not be published in any document or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.
Shahbaz, 2016 ONCA 636

DATE: 20160819

DOCKET: C59065

Doherty, van Rensburg and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Shahbaz

Appellant

Gregory Lafontaine, for the appellant

Brock Jones, for the respondent

Heard and released orally:  August 16, 2016

On appeal from the conviction entered by Justice E.R.
Tzimas of the Superior Court of Justice, dated November 14, 2013.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault.  He had sexual
intercourse with the complainant when on any view the evidence she was very
drunk.  The appellant testified that the complainant consented to sexual
intercourse.  The complainant had no recollection of having had sex with the
appellant.

[2]

The trial proceeded before a judge sitting without a jury.  The outcome
turned entirely on the trial judges credibility assessments made in the
context of the Crowns burden to prove the charge beyond a reasonable doubt.

[3]

The trial judges reasons reveal a detailed and careful consideration of
the totality of the evidence and the various arguments advanced by the
defence.  The trial judge was clearly alive to the burden of proof on the Crown
and the arguments made by counsel.

[4]

The appellant testified through an interpreter.  There is no issue as to
the competence of the interpreter.  However, counsel submits that the trial
judge failed to take the fact that the appellant was testifying through an
interpreter into account in assessing the appellants credibility.  Counsel
focuses on two aspects of the trial judges reasons.

[5]

First, counsel submits that the trial judge should not have given
significant weight to an admission made by the appellant during his
cross-examination.  Counsel argues that the question eliciting the admission
was confusing and unclear.  He also argues that the appellants response was
entirely inconsistent with the rest of the appellants evidence demonstrating
that the appellant must have been confused by the question.

[6]

We disagree.  The question was not confusing on its face.  No issue was
raised at trial about the adequacy of the interpretation as it related to the
exchange in issue.  We cannot assume that the appellant was confused simply
because he gave a significantly incriminating response through an interpreter.  We
also note that this exchange was not the only incriminatory aspect of the appellants
evidence.

[7]

The appellants admission referred to above was far from the only
reason the trial judge gave for rejecting the appellants evidence.  His
evidence was replete with inconsistencies and the trial judge highlighted many
of these.

[8]

In addition to thoroughly addressing the appellants evidence, the trial
judge also explained at length her reasons for accepting the complainants
evidence.  Her evidence was confirmed in material respects.

[9]

Counsel also argues that the trial judge improperly found that the
appellant was feigning confusion when he attempted to resile from the
admission referred to above.  First of all, we understand the trial judges
reference to the appellant feigning confusion to be a reference to the
entirety of the appellants evidence and not a single answer (see para. 133 of
the trial judges reasons).  As trial counsel expressly acknowledged to the
trial judge in his submissions, it was for the trial judge to determine whether
the appellants apparent confusion at times during his cross-examination was
feigned or otherwise.  There is no basis upon which we can interfere with the
trial judges assessment.

[10]

The appeal is dismissed.

Doherty J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


