



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    the victim or a witness shall not be published in any document or broadcast or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(iii)  REPEALED: S.C. 2014, c. 25, s. 22(2), effective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    shall not be published in any document or broadcast or transmitted in any way.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. Djuraev, 2016 ONCA 765

DATE: 20161019

DOCKET: C57168

Doherty, Hourigan and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ravshan Djuraev

Appellant

Najma Jamaldin, for the appellant

Nadia Thomas, for the respondent

Heard and released orally: October 5, 2016

On appeal from the conviction entered on December 18,
    2012 and the sentence imposed on May 13, 2013 by Justice Petra E. Newton of the
    Ontario Court of Justice.

ENDORSEMENT

The Conviction Appeal

[1]

There are several grounds of appeal arising from the trial record.
    Counsel also brings a fresh evidence application alleging that trial counsel
    provided ineffective assistance. We will deal first with the grounds of appeal
    arising from the trial record.

[2]

There was ample evidence upon which the trial judge could find that the
    injuries inflicted on the victim by appellant amounted to bodily harm as
    defined in the
Criminal Code
. The pictures speak for themselves. The
    point was conceded, in our view properly, at trial.

[3]

The trial judge considered the defence claim that the appellant had an
    honest belief that the victim was consenting to the sexual activity. While
    there was perhaps some basis in the evidence for that position, the trial judge
    rejected the claim in light of the findings of fact she made. Those findings
    included the following:

·

The victim repeatedly said no to the appellant during the
    sexual activity;

·

The victim physically resisted the activity;

·

The appellant used force to both restrain and demobilize the
    victim during the activity;

·

The appellant inflicted significant injuries on the victim during
    the activity.

[4]

There was no misapprehension of the evidence by the trial judge. On the
    view of the evidence she took, those findings of fact were open to her. Based
    on those findings of fact, there was indeed no air of reality to the defence
    of honest belief and consent. The trial judges use of the phrase no air of
    reality, a term more commonly used in a jury trial context, was simply an
    indication by the trial judge that based on her factual findings, there was no merit
    to the claim of an honest belief and consent.

[5]

The trial judge also made a finding that the victim did not consent to
    the sexual activity. Once again she outlined the findings of fact on which she
    based that conclusion. Those findings reveal no misapprehension of the evidence
    and were open to her.

[6]

Having found that the victim did not consent to the application of force
    and that the appellant did not have an honest belief in consent, it was not
    relevant whether the appellant intended to cause bodily harm. An intention to
    cause bodily harm is not an element of the offence of sexual assault causing
    bodily harm. The intention to cause bodily harm coupled with the actual causing
    of bodily harm may vitiate or negate a victims consent to the application of force.
    Where, as found in this case, there was no consent to the application of force,
    there was no need to consider whether consent was somehow vitiated: see
R.
    v. Nelson
, 2014 ONCA 853 at para. 25.

[7]

Turning to grounds of appeal based on the allegation that trial counsel
    did not provide effective assistance to the appellant, we have considered the
    appellants affidavit and his cross-examination as well as trial counsels
    affidavit and cross-examination.

[8]

We are not here to grade trial counsels performance. We also do not
    readily accept allegations made by convicted accused that they did not receive
    adequate assistance from their lawyers. Those kinds of allegations are very
    easy to make and because of the nature of the relationship between an accused
    and his trial lawyer, difficult for trial counsel to refute.

[9]

In our view, the appellants affidavit and his cross-examination reveal
    that he is not credible insofar as he purports to describe what went on between
    himself and his trial lawyer.  Many of the appellants answers during this
    cross-examination were confusing and contradictory. We decline to act on his
    version of events.

[10]

Most of the arguments alleging ineffective assistance depend on the
    acceptance of his evidence. Those few that do not, have no merit.

[11]

The appellant has not satisfied us that a miscarriage of justice
    occurred as a result of the ineffective assistance provided by his counsel.

[12]

The conviction appeal is dismissed.

Sentence Appeal

[13]

The trial judges reasons for sentence demonstrate a careful
    consideration of the facts relevant to both the offence and the offender. We
    agree that her determination that the circumstances of the offence, an
    attempted rape, required a significant period of incarceration in a reformatory
    despite the many positive things about the appellant. We defer to her
    determination that 13 months was the appropriate sentence.

[14]

Leave to appeal sentence is granted but the appeal is dismissed.

Doherty J.A.

C.W. Hourigan J.A.

L.B. Roberts J.A.


