



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    the complainant or a witness shall not be published in any document or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. Dinardo, 2014 ONCA 758

DATE:  20141031

DOCKET: C57531

Sharpe, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Enrico Dinardo

Appellant

Frank Addario and Rebecca McConchie, for the appellant

Robin Flumerfelt, for the respondent

Heard and released orally:  October 23, 2014

On appeal from the conviction entered on May 31, 2013 by
    Justice Timothy A. Culver of the Ontario Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant appeals his sexual assault conviction submitting that his
    actions, as found by the trial judge, did not constitute a sexual assault.

[2]

The circumstances surrounding the charge may be summarized as follows.
    The appellant is a chiropractor and the complainant was his patient.  During
    the course of a treatment, the appellant massaged the complainants back by
    applying a massage tool with his left hand, while surreptitiously masturbating
    with his right hand. The complainant noticed a wet spot on her pants after the
    treatment was finished. Testing later confirmed the presence of the appellants
    semen on the complainants pants.

[3]

After citing the relevant passage from
R. v. Chase
, [1987] 2
    S.C.R. 293, the trial judge found:

On all the evidence, I find the complainant consented to a
    professional chiropractic massage. She did not consent to a massage being used
    for a sexual purpose by the accused, mainly his sexual arousal by her presence
    and masturbation during her treatment.  On all the evidence, I find the accused
    either by design or happenstance became sexually aroused during a chiropractic
    treatment of the complainant, surreptitiously, manipulated his penis and
    masturbated either directly on the complainant or on the treatment table.  I
    find that after his arousal, during masturbation, he maintained contact with
    her in order to deceive her or prevent her from discovering what he was doing
    for his own sexual gratification.  She did not, I find, consent any of this.

[4]

The appellant contends that his conduct does not constitute sexual
    assault because sexual assault requires touching in a sexual context. He argues
    that the contact he maintained with the complainant with his left hand was
    nonsexual contact intended to prevent her from discovering what he was doing
    with his other hand. The appellant also submits that the touching with the
    massage tool was purely therapeutic and therefore consensual. He further argues
    that there is no specific finding by the trial judge that the complainants
    sexual integrity was violated.

[5]

In our view, there is no merit to the appellants position.  A
    reasonable observer, considering all the circumstances, would find that the
    contact was sexual in nature and that the complainants sexual integrity had
    been violated.  We are also of the view that the complainant did not consent to
    being touched in a sexual manner.

[6]

The appeal is, therefore, dismissed.

[7]

The appellant surrendered into custody as required by his bail.  As he
    was sentenced to an intermittent sentence, para. 1 of the bail order must be
    struck out and the appellant should be released from Hamilton Wentworth
    Detention Centre so he can commence serving his intermittent sentence.

Robert J. Sharpe J.A.

C. William Hourigan J.A.

G. Pardu J.A.


