



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Nijimbere, 2021 ONCA 154

DATE: 20210309

DOCKET: C68177

Tulloch, Huscroft and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jean Paul Nijimbere

Appellant

Jean Paul
    Nijimbere, acting in person

Andrew
    Furgiuele, duty counsel

Jeffrey
    Wyngaarden, for the respondent

Heard
    and released orally: March 8, 2021 by video conference

On appeal
    from the conviction entered on December 11, 2019 and the sentence imposed on February
    7, 2020 by Justice Wendy L. Harris Bentley of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

Following a trial by a judge in the Ontario
    Court of Justice, on November 22, 2019, the appellant was convicted of criminal
    harassment, utter death threat, sexual assault, and assault causing bodily harm.
    He was sentenced to 21 months incarceration, followed by three years probation,
    as well as some ancillary orders.

[2]

He now appeals both his conviction and sentence.

[3]

The appellant raises two main grounds on the
    conviction appeal. 1) That his counsel was ineffective, in that he did not
    adduce relevant evidence in the appellants defence, per his instructions; and
    2) That the trial judge erred in her factual findings and credibility
    assessment of the various witnesses.

[4]

Both complainants in this matter were
    ex-domestic partners of the appellant. At trial, both complainants testified
    for the Crown, as well, the appellant testified in his own defence. In
    addition, DNA evidence, as well as documentary call log evidence was adduced by
    the Crown.

[5]

The appellant denied all allegations and claimed
    an alibi defence for the assault causing bodily harm charge.

[6]

With respect to the first ground of appeal, we
    see no merit to the appellants argument. The appellant has neither complied
    with the ineffective assistance of counsel protocol, nor did he present any
    fresh evidence to substantiate this ground.

[7]

With respect to the appellants second ground of
    appeal, the appellant is essentially attempting to re-try the case before this
    court. He makes the same arguments before this court as he did before the trial
    judge. The trial judge gave very clear and cogent reasons in which she made
    specific findings of fact as well, based on credibility assessments of all the
    witnesses, including the appellant. In addition, the trial judge considered the
    medical evidence of the first complainants injuries, the DNA evidence as well
    as the documentary evidence. All the corroborative evidence was consistent with
    and substantiated by both Crown witness
viva voce
evidence.

[8]

The appellant testified and his evidence did not
    raise a reasonable doubt. The trial judge simply did not believe his evidence
    as it was both internally and externally inconsistent.

[9]

In addition, the trial judge was correct in
    rejecting the appellants alibi evidence, as the alibi was only raised for the
    first-time during cross-examination, and as such, she was entitled to draw an
    adverse inference regarding this evidence.

[10]

We see no basis to interfere with the trial
    judges findings. Accordingly, the appeal as to conviction is dismissed.

[11]

The appellant also seeks leave to appeal
    sentence, and if leave is granted, he appeals his sentence on the basis that he
    should never have been sentenced in the first place, because he should not have
    been convicted.

[12]

We see no error in principle with the sentence
    imposed, nor is the sentence demonstrably unfit. Accordingly, leave to appeal
    sentence is granted, but the sentence appeal is dismissed.

M.
    Tulloch J.A.

Grant
    Huscroft J.A.

J.A.
    Thorburn J.A.


