



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. J.C., 2021 ONCA 181

DATE: 20210323

DOCKET: C67003

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.C.

Appellant

Jessica Zita, for the appellant

Samuel Greene, for the respondent

Heard and released orally: March 15, 2021 by
    video conference

On appeal from the conviction entered by Justice Karey
    Katzsch of the Ontario Court of Justice on February 19, 2019, and from the
    sentence imposed on May 27, 2019.

REASONS FOR DECISION

[1]

The appellant appeals his convictions for sexual assault and common
    assault, as well as the sentence imposed of 45 days to be served intermittently
    and two years probation.

[2]

The appellant submits that the trial judge did not properly assess the
    credibility and the reliability of the complainants evidence and applied a
    different standard of scrutiny to the evidence of the defence and the Crown.
    The appellant also alleges that the trial judge failed to properly apply the
    third prong of
R. v.

W.(D.)
, [1991] 1 S.C.R. 742
by undertaking a
    credibility contest, and that she rendered an inconsistent and unreasonable
    verdict on the sexual assault conviction.

[3]

On the sentence appeal, the appellant submits that the trial judge
    failed to apply the principle of restraint, as the appellant was a first-time
    offender. The appellant also argues that the sentence should be reduced to time
    served as a result of the COVID-19 pandemic.

[4]

We dismiss the appeal. Most of the appellants arguments are, in effect,
    requests for this court to carry out a fresh assessment of credibility and to
    consider the alleged inconsistencies in the Crowns evidence but, contrary to
    the trial judges assessment, to resolve them in favour of the appellant.

[5]

In our view, there is no basis to interfere with the trial judges
    findings. Her reasons clearly explained why she found the complainant credible.
    She acknowledged the minor inconsistencies in the complainants evidence and
    was not required to address all of them in her reasons. She acknowledged the alleged
    inconsistencies between the complainants evidence and Mr. Wilmers evidence.
    These were minor in nature and did not detract significantly from the Crowns
    case.

[6]

We also disagree with the appellants submission that the trial judge
    misapplied the
W.(D.)
analysis. The reasons demonstrate that the trial
    judge understood and properly applied the third step of
W.(D.)
and did
    not treat the case as a credibility contest.

[7]

As for the appellants submission that the verdict is inconsistent, we
    agree with the Crowns argument that the conviction for assault on the second
    count demonstrates that the trial judge considered the evidence as a whole to
    see if she was left with a reasonable doubt. The trial judge did not have to
    choose between competing versions of events, nor was she limited to accepting
    both or neither of the complainants versions of the incidents. It was open to her
    to accept the complainants version for one incident but to be left with a
    reasonable doubt on the other.

[8]

We also see no basis to interfere with the sentence imposed. The trial
    judge decided to impose a shorter sentence than the Crown requested, imposed an
    intermittent sentence, observed that the principles of denunciation and
    deterrence were necessary here and recognized the mitigating and aggravating
    factors. This was a tailored sentence that is appropriate and well within the
    range.

[9]

As for the COVID issue, the appellant has not sought to file fresh
    evidence as to how intermittent sentences are being administered. In any event,
    we see no basis to reduce the sentence.

[10]

For
    these reasons, the conviction and sentence appeals are dismissed.

Paul Rouleau J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.


