



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    the complainant or a witness shall not be published in any document or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, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    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, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

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. Perkins, 2015 ONCA 521

DATE: 20150710

DOCKET: C57985

Strathy C.J.O., MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyler Perkins

Appellant

Dirk Derstine and Ariel Herscovitch, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: July 8, 2015

On appeal from the conviction entered on May 8, 2013 and
    the sentence imposed on July 26, 2013 by Justice David Salmers of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction by Salmers J. of the Superior Court
    of Justice for sexual assault, voyeurism, and two counts of breach of
    probation. He also appeals his global sentence of six years for these offences.

[2]

The charges against the appellant arose from an incident involving the
    appellant and his then sexual partner. On the day in question, they had sexual
    intercourse three times. It is common ground that the first and third times
    were consensual. However, criminal charges were laid with respect to the second
    episode of sexual intercourse. The Crown contended that the appellant choked
    the complainant and had sexual intercourse with her while she was unconscious
    and videotaped the sexual activity without her knowledge. The trial judge
    decided that these offences were made out and convicted the appellant.

Conviction

[3]

The appellant contends that the trial judge misapprehended the evidence
    in several respects, including his failure to recognize that the complainants
    testimony at the preliminary inquiry was inconsistent with her testimony at
    trial.

[4]

We do not accept this submission. The test for determining when a
    misapprehension of evidence by a trial judge should result in a new trial is a
    stringent standard: see
R. v. Bains
, 2012 ONCA 305, at paras. 11-15.

[5]

It is true that in some respects the complainants testimony at the
    trial differed from her testimony at the preliminary inquiry. For example, at
    the preliminary inquiry the complainant testified that she engaged in no
    discussion with the appellant immediately after the choking incident. At trial,
    she testified that they did talk about it, with her asking why did you do
    that? and him replying I dont know.

[6]

However, we do not think that this isolated example is sufficient to
    overturn the trial judges findings. There were only three witnesses at this
    trial  the complainant, the appellant, and the appellants ex-girlfriend,
    Alexandra Mutton (who was a strong Crown witness). The trial judge discussed
    the credibility of all three witnesses in considerable detail. He stated that
    [t]here are reasons that cause concern with the credibility of each witness in
    this case, and the reliability of their testimony. After reviewing their
    testimony and the problems with it, the trial judge concluded that I found
    [the complainants] testimony about the choking/filming incident to be very
    credible and reliable. In similar fashion, he concluded that I found Ms.
    Mutton to be very credible and reliable in her testimony about what Mr. Perkins
    told her about the choking/filming incident.

[7]

In the end, the trial judge was entitled to accept the testimony of the
    complainant and Ms. Mutton, confirmed in important respects by the appellants
    own testimony. We do not see any material misapprehension of evidence in his
    reasons.

[8]

The appellant submits that the trial judge violated the rule against
    oath helping by saying: With respect to the choking/filing incident, [the
    complainants] credibility is also enhanced by the consistency of her testimony
    about what occurred that night.

[9]

We disagree. The core of the defence at trial was a vigorous attack on
    the complainants credibility based on inconsistencies between her testimony at
    trial and her prior statements. In this context, points of consistency on
    essential aspects of the allegations are relevant to the credibility and
    reliability assessment of a complainants evidence: see
R. v. L.O.
,
    2015 ONCA 394, at paras. 34-36.

[10]

The
    appellant asserts that the trial judge erred by failing to address mistaken
    belief in consent in his reasons.

[11]

We
    do not accept this submission. Both the complainants account of the sexual
    incident and Ms. Muttons testimony about what the appellant told her about the
    incident (He had continued to have sex with her while she was unconscious)
    precluded an alternate defence of honest but mistaken belief.

Sentence

[12]

The
    appellant contends that the trial judge erred by finding that there were no
    mitigating factors that applied to the appellant and by imposing a harsh and
    excessive sentence.

[13]

We
    disagree. The trial judge reviewed the appellants character and serious
    criminal record relating to previous sexual assaults on other women. He said:

Mr. Perkins does not demonstrate any empathy for the victim or
    his previous victims. He has no remorse and no acceptance of responsibility for
    the current or previous offences. Neither Mr. Perkins, nor any of the people
    who may support him after his release from custody, demonstrate any insight
    into his offences. Mostly, they blame his victims.

[14]

The
    Crown concedes that, in light of the recent decision in
R. v. Summers
,
    [2014] 1 S.C.R. 575, the appellant should have received 1.5:1 credit for
    pre-sentence custody. The trial judge granted 24 months credit for 17 months
    pre-sentence custody.
Summers
mandates 25.5 months credit.

Disposition

[15]

The
    conviction appeal is dismissed. The sentence appeal is allowed, but only to the
    extent of increasing the credit for pre-sentence custody from 24 months to 25.5
    months.

G.R.
    Strathy C.J.O.

J.C.
    MacPherson J.A.

M.L.
    Benotto J.A.


