



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. M.R., 2020 ONCA 281

DATE: 20200504

DOCKET: C67227

MacPherson, Benotto and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.R.

Appellant

Amy Ohler, as duty counsel

Michael Fawcett, for the respondent

Heard: April 27, 2020 by Teleconference

On appeal from the conviction entered on
    May 15, 2019 and the sentence imposed on July 3, 2019 by Justice James R.
    Chaffe of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual
    exploitation of a young person contrary to s. 153 of the
Criminal Code
following a trial before Chaffe J. of the Ontario Court of Justice. He received
    a custodial sentence of ten months for this offence.

[2]

The appellant appeals the conviction and the
    sentence.

[3]

The complainant and the appellant testified at
    the trial. The trial judge believed the complainant and rejected the
    appellants testimony.

[4]

The appellant and the complainants mother were
    in an intimate relationship. The appellant had a good relationship with the
    mothers two children from a previous relationship. One of those children was
    the complainant. As expressed by the trial judge, [The complainant] and Mr.
    Robinson had a longstanding relationship which, on both accounts, had many
    positive features.

[5]

The complainant had a back injury and the
    appellant would occasionally give her a back massage. On one occasion, the
    complainant testified, the massage expanded to include sexual contact. As
    described by the trial judge:

[The complainant] testified about a sexual
    assault during a massage in the summer of 2016. She had been massaged by Mr.
    Robinson before but not like this. She was in her mothers bedroom when Mr.
    Robinson came in and rubbed her back while she was sitting up. [The
    complainant] lay down on her stomach and he began to massage her back having
    pushed up her shirt using massage oil, olive oil as administered by Mr.
    Robinson, then straddle her upper legs, undid her bra strap and massaged her
    whole back. During this massage, he attempted to move his hands down her sides and
    under her breasts but [the complainant] pulled her arms in and asked what he
    was doing. He continued to massage her then began to kiss and lick her back.
    She could feel his beard. He ground his hips into her buttocks until he finally
    lay on top her and got off telling her that she had given him a real workout
    this time.

[6]

The trial judge accepted this description and
    concluded that it established the criminal charge.

[7]

The appellant contends that some of the language
    in this passage, especially the words ground his hips into her buttocks, is
    inconsistent with the complainants description of the event and amounts,
    therefore, to a misapprehension of the evidence.

[8]

We do not accept this submission. Several times
    the complainant testified about the appellants physical movements during the massage.
    Typical of her testimony was this passage:

Q.       part of his body was he pushing
    against you?

A.      Like, his hips and his, like legs where he was sitting on
    me. Oh, and throughout that, when he was still rubbing my back, he was still
    licking my back and kissing my back.



Q.      Okay. And what part of his body did
    you feel?

A.      Oh, he was, like pushing his hips and his, like  oh, like
    upper legs every time he was rubbing my back....

In our view, the complainants
    testimony and the trial judges description are similar. There was no
    misapprehension of the evidence.

[9]

Second, the appellant submits that the trial
    judge erred by not addressing inconsistencies between the complainants
    testimony and her statement to the police.

[10]

We are not persuaded by this submission. The
    core of the complainants statement to the police and her trial testimony was
    that she experienced an unwanted sexualized massage from the appellant. In a
    fairly lengthy closing address at the trial, defence counsel said nothing about
    alleged inconsistencies between the complainants police statement and her
    trial testimony. Accordingly, the trial judge was entitled to conclude: There
    were no significant inconsistencies in her evidence at trial and her statement
    to police.

[11]

Third, the appellant appeals his sentence of ten
    months incarceration. Although there are potential immigration consequences of
    a ten-month sentence, we cannot say that the sentence is unreasonable or
    demonstrably unfit, especially in light of the complainants youth and the
    appellants position of trust in the family dynamic.

[12]

The appeal is dismissed.

J.C.
    MacPherson J.A.

M.L.
    Benotto J.A.

I.V.B.
    Nordheimer J.A.


