



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. R.S., 2022 ONCA 112

DATE: 20220208

DOCKET: C69055

van Rensburg, Nordheimer and
    George JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

R.S.

Respondent

Samuel Greene and Catherine Weiler, for
    the appellant

Andrew
Furgiuele
, for the respondent

Heard: February 2, 2022 by
    video conference

On appeal from the acquittal entered by
    Justice Tory Colvin of the Ontario Court of Justice on January 5, 2021.

REASONS FOR DECISION

[1]

The Crown appeals from the acquittal of the
    respondent on a charge of sexual assault. The Crown asserts three grounds of
    appeal: (i) that the trial judge incorrectly articulated and applied the law on
    consent; (ii) that the trial judges reasons were insufficient; and (iii) that
    these errors were material to the acquittal.

[2]

We would not give effect to any of these grounds
    of appeal. On the first ground, the appellant takes issue with the following
    statement from the trial judges reasons:

The issue here is consent. There is no
    presumption of consent. It must be found in the words or actions of the complainant,
    as expressions of it. It may also be found in a reasonable and honest belief in
    the communication of consent by the complainant to [R.S.], which led to the
    actions.

[3]

In our view, this paragraph does not reflect
    error in the articulation of the proper approach to consent unless one engages
    in a parsing of the words used, which is not the role of an appellate court:
R.
    v. G.F.
, 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 69. Read fairly, the
    trial judge correctly set out the requirement of consent and also the
    alternative defence of honest but mistaken belief. It was the former issue that
    led to the acquittal.

[4]

In order to obtain a conviction, the Crown was
    required to prove, beyond a reasonable doubt, that the complainant did not
    consent to the sexual activity. In considering that issue, the trial judge
    was required to look at all of the evidence, including the complainants words
    and actions, before and during the incident to see if they raised a reasonable
    doubt:
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, at para. 29.

[5]

On that issue, the appellant acknowledges that
    the complainant and the respondent had offered diametrically opposed versions
    of what had happened. The problem for the Crown at trial was that the trial
    judge found that the complainant, while a truthful witness, was an unreliable
    witness. He therefore concluded that the Crown had failed to establish, beyond
    a reasonable doubt, that there was no consent.

[6]

The trial judge gave reasons for his conclusion
    regarding the credibility and reliability of the complainant as a witness. It
    is not our job to retry the case, although it is apparent that that is what the
    appellant invites us to do.

[7]

On the second ground of appeal, the trial
    judges reasons are sufficient to allow for appellate review, especially taking
    into account that this was a short trial conducted in the Ontario Court of
    Justice, this provinces busiest trial court. The reasons responded to the
    central issue in the trial, that is, consent. On that point, we note that an
    acquittal, unlike a conviction, can rest simply on the absence of proof, which
    is what the trial judge found in this case. The adequacy of a trial judges
    reasons must be assessed in this context:
R. v. Walker
, 2008 SCC 34, [2008]
    2 S.C.R. 245, at para. 22.

[8]

On the third ground of appeal, there is simply
    no error by the trial judge, thus the issue of materiality does not arise.

[9]

The appeal is dismissed.

K. van Rensburg J.A

I.V.B. Nordheimer J.A.

J. George J.A.


