



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)      two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)      on application made by the complainant,
    the prosecutor or any such witness, 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).

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.F., 2016 ONCA 900

DATE: 20161129

DOCKET: C60981

LaForme, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.F.

Appellant

Alan Risen, for the appellant

Dena Bonnet, for the respondent

Heard: November 23, 2016

On appeal from the conviction entered on May 15, 2015 by
    Justice Clayton John Conlan of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The trial judge convicted the appellant of one count of sexual
    assault and sentenced him to 18 months incarceration. The sole issue at trial
    was consent; the appellant did not testify. He appeals his conviction and
    argues that
the trial judge made numerous errors
    in reaching his decision. We reject each of the appellants alleged errors.

[2]

First, the trial judge did not reverse the burden of proof on the
    central issue of consent. He correctly recited the Crowns burden of proof
    several times in his reasons and was acutely aware of the legal presumption of
    the appellants innocence. He specifically addressed the complainants
    flashback evidence and rejected it as reliable evidence that she was awake,
    correctly in our view. He considered and weighed that evidence in light of the
    case as a whole and did not improperly shift the burden of proof onto the
    defence.

[3]

Second, we do not agree that the trial judge failed to appreciate or
    adequately scrutinize the complainants evidence. He did precisely that and concluded
    that any inconsistencies were inconsequential. The question was whether or not
    the complainant was asleep at the relevant time and therefore did not consent
    to sex. The discrepancies raised by the appellant are of no assistance in that
    regard; the trial judges credibility assessment was entirely reasonable.

[4]

Third, the trial judge took the correct approach to assessing the
    remorse contained in the appellants statement to the police and letter of
    apology. He considered this evidence in connection with the rest of the
    evidence taken as a whole, as he should have. At para. 78 of his reasons, he
    properly concluded:

By itself, the statement of [the appellant] could not amount to
    proof beyond a reasonable doubt. It is simply one piece of the puzzle. To the
    extent that it is reliable, elaborated upon and qualified above, it is
    incriminating.

[5]

The appellant has not demonstrated any palpable and overriding error.

[6]

Finally, the verdict is not unreasonable. The complainant recalled all
    significant details of the evening up until she went to sleep. Upon awaking in
    the morning she immediately knew someone had had sex with her. The trial judge
    expressly followed this courts decision in
R. v. Garciacruz
,
2015 ONCA 27, 320 C.C.C.
    (3d) 414,

and gave reasons for why
    an explanation other than her having been asleep was not reasonable. Paragraphs
    91 and 92 of the trial judges reasons capture the essence of this case:

Put bluntly, aside from the fact that I find [the
    complainant] to have been a generally credible and reliable witness, there is
    no evidence to the contrary (aside from, perhaps, the flashbacks which I have
    already indicated cannot be relied upon).

That statement is not meant to suggest that the defence has any
    burden of proof, however, when the evidence from a credible and reliable
    witness is that she does not remember the sexual encounter because she was
    asleep, in the absence of anything that suggests otherwise, it is virtually
    inevitable that a finding of fact will be made that the complainant was asleep
    during the sex.

[7]

The grounds of appeal all constitute attacks on the trial judges
    findings of fact, to which this court owes deference. The appellant has not
    demonstrated that the trial judge made any palpable and overriding error, so
    the appeal must be dismissed.

H.S.
    LaForme J.A.

"Paul
    Rouleau J.A."

"David
    Brown J.A."


