



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. E.D., 2020 ONCA 633

DATE: 20201007

DOCKET: C66858

Lauwers, Huscroft and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E.D.

Appellant

Ravin Pillay, for the appellant

Lisa Fineberg, for the respondent

Heard by videoconference: September 22, 2020

On appeal from the conviction entered by Justice David
    Harris of the Ontario Court of Justice on January 17, 2019, with reasons
    reported at 2019 ONCJ 34, 153 W.C.B. (2d) 563, and the sentence imposed on May
    1, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of assault, two counts of mischief to
    property, and sexual assault against his former domestic partner, J.P. The
    prosecution proceeded against J.P.s wishes, and despite an affidavit in which
    J.P. recanted her allegations against the appellant.

[2]

The appellant raises several issues on appeal. He says that the trial
    judge:

1.

erred in failing to consider whether the
actus reus
of sexual
    assault had been proven;

2.

erred in failing to apply the principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742

to J.P.s
    exculpatory evidence;

3.

misapprehended the evidence on J.P.s motive to fabricate; and

4.

erred in allowing the Crown to cross-examine J.P. at large.

[3]

We conclude that the judge made no such errors. We note that two
    additional grounds set out in the factum were not pursued at the hearing. The
    appellant argued that the trial judge erred in failing to address
    inconsistencies in J.P.s evidence and erred in admitting J.P.s phone
    statement. We see no merit in these additional grounds.

[4]

Accordingly, the appeal is dismissed for the reasons that follow.

Background

[5]

J.P. called 911 on July 10, 2017 to complain that the appellant refused
    to stop contacting her after their relationship had ended. J.P. said that the
    appellant was threatening to report information to social services that could
    cause her to lose her subsidized housing.

[6]

J.P. made several allegations against the defendant in that call. She
    claimed that E.D. had a firearm and had threatened to shoot her. However, she
    informed the police subsequently that she did not want to take the matter
    further and would not provide a statement.

[7]

On July 31, 2017 Detective Whittaker called J.P. and taped their phone
    conversation. J.P. said that she felt unsafe with the appellant and that she
    wanted him to leave her alone. She described several acts of violence that the
    appellant committed against her, the most serious of which amounted to sexual
    assault. However, J.P. said she did not believe she was sexually assaulted. She
    did not mention a threatened shooting.

[8]

Following this interview, J.P. recanted most of her allegations. She
    swore an affidavit stating that she felt pressured to give her statement to the
    police. With respect to the sexual assault, she swore that she consented at the
    relevant time. J.P. asked for criminal charges against E.D. to be withdrawn. Nevertheless,
    the Crown proceeded with the charges.

[9]

J.P. testified at trial as the Crowns witness. On cross-examination by
    the appellants trial counsel, she adopted the contents of her affidavit.

The trial judge did not fail to consider whether the
actus
    reus
of sexual assault had been proven

[10]

This
    issue was the focus of the appellants submissions. The appellant argues that
    the trial judge erred in basing his decision on s. 273.1 of the
Criminal
    Code
, because J.P. was not unconscious or incapable of consenting during
    the assault. As a result, the trial judge failed to consider: 1) whether J.P. subjectively
    consented to the sexual activity in question and, in particular, did not
    believe that she had been sexually assaulted; 2) whether J.P. had given her
    full and informed consent to the activity; and 3) that the sexual activity
    stopped when J.P. withdrew her consent.

[11]

This
    argument must be rejected.

[12]

The
    trial judge considered J.P.s statement to the police, her subsequent
    affidavit, her evidence at trial, and the differences between these things. As
    the Crown points out, J.P.s statement to Detective Whittaker that she did not
    want to engage in intercourse at the time it was occurring was undisturbed at
    trial. Specifically, in answer to the question: So did you want to have sex
    with him at that point?, she answered: At that point, no. But in other past
    incidents we would make up like that. The trial judge was entitled to find,
    based on the evidence before him, that J.P. did not consent to the sexual
    activity while it was taking place, and that was sufficient to establish the
actus
    reus
of the offence.

[13]

The
    trial judge did not frame this as a case of unconsciousness and did not fail to
    consider whether J.P. consented. His discussion of s. 273.1 came in the context
    of J.P.s evidence that she was feigning unconsciousness and that the appellant
    knew this. The appellant did not testify so there was no evidence before the
    court as to his belief  no basis for a defence that he lacked
mens rea
on the basis of an honest but mistaken belief. This was the context in which
    the trial judge found, based on J.P.s statement to the police and her evidence
    in court, that the appellant did not ask her if she was conscious and whether
    she wanted to engage in intercourse.

The trial judge did not fail to apply
W.(D.)

to
    J.P.s exculpatory evidence

[14]

Although
    the trial judge specifically referred to
W.(D.)

only at the
    outset of his decision, in the context of a video-recorded statement by E.D.,
    we are satisfied that he

properly instructed himself on the concept of
    reasonable doubt and applied that standard to all of the charges. This resulted
    in acquittals on one charge of assault, as well as charges of threatening death
    and criminal harassment. The trial judge was not required to set out the
W.(D.)
approach in respect of each conclusion.

[15]

The
    trial judge found that despite J.P.s attempt to absolve the appellant of
    responsibility, her evidence at trial corroborated the contents of her
    statement to Detective Whittaker to a significant degree. This finding was open
    to the trial judge and there is no basis to interfere with it.

The trial judge did not misapprehend the evidence as to motive
    to fabricate

[16]

The
    trial judge did not misapprehend the evidence. He found it was clear that J.P.
    wanted the police to tell the appellant to stop contacting her and that she
    wanted no further involvement with the police once this goal was accomplished.
    She had to be coaxed by the police into making a statement and did so without
    any coercion or pressure.

[17]

The
    trial judge did not improperly fail to give effect to the evidence concerning
    motive. He considered the evidence at length, including J.P.s allegation in
    the 911 call that the appellant had threatened to shoot her, something she
    testified she did not remember saying. The trial judge considered this a significant
    inconsistency but ultimately rejected the evidence that J.P. was motivated to
    fabricate the allegations she made against the appellant in her conversation
    with Detective Whittaker. The trial judge found that J.P. wanted to stop the
    appellant from contacting her and had achieved that goal by the time she gave
    her statement to Detective Whittaker. He also found that she did not want
    further involvement with the police and did not want the appellant arrested. The
    appellant has not identified any misapprehension of the evidence that would
    entitle this court to interfere with the trial judges findings. His
    submissions invite us to revisit the trial judges credibility findings, but
    that is not our role on appeal. This ground of appeal must be rejected.

The trial judge did not err in allowing the Crown to
    cross-examine J.P. at large

[18]

The
    appellant submits that the Crowns cross-examination of J.P. went beyond the
    scope permitted by s. 9(2) of the
Canada Evidence Act
,
R.S.C., 1985, c. C-5 and that the Crown
    wrongly questioned her at large concerning the alleged sexual assault, yielding
    evidence that the trial judge relied on in convicting the appellant. We
    disagree.

[19]

Cross-examination
    is subject to the discretionary control of the trial judge and his decisions
    concerning the scope of cross-examination are entitled to deference. Although
    the scope of cross-examination under s. 9(2) is confined by the language of
    that section, which specifically refers to the statement, J.P.s statement to
    Detective Whittaker was linked to her affidavit and it was not unreasonable to
    allow some latitude in cross-examination. It is noteworthy, but of course not
    determinative of the issue, that the appellants trial counsel (not Mr. Pillay)
    did not object to either the Crowns s. 9(2) application or the Crowns
    cross-examination. Trial counsel did not think it improper or prejudicial and
    neither do we.

[20]

The
    appeal is dismissed.

P. Lauwers J.A.

Grant Huscroft J.A.

Harvison Young J.A.


