



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. G.H., 2018 ONCA 349

DATE: 20180412

DOCKET: C64105

Feldman and Benotto JJ.A. and Sachs J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

G.H.

Appellant

Michael J. Venturi, for the appellant

Andrew Hotke, for the respondent

Heard and released orally: March 29, 2018

On appeal from the conviction entered on April 19, 2017 by
    Justice M. Gregory Ellies of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

On April 19, 2017, the appellant was convicted of one count of sexual
    assault after a trial before a judge sitting alone.  This is an appeal from
    that conviction.

[2]

The appellant alleges that the trial judge made two errors.  First, he
    submits that the trial judge erred in law by considering both parties failure
    to climax as part of his credibility assessment of the appellant.  Second, he
    argues that the trial judge erred when he failed to consider the potential for
    collusion between the complainants family members who testified regarding the
    event.

[3]

With respect to the first ground of appeal, the Appellant submits that
    in rejecting the appellants evidence about what happened in the bedroom, the
    trial judge erroneously took judicial notice of an adjudicative fact when he
    stated the following at paragraph 68 of his reasons:

First, on the accuseds evidence, there is no real explanation
    as to why neither party reached climax when they engaged in intercourse.  That
    seems at odds with what one would expect if the two of them were such willing
    partners to such a novel encounter.

[4]

According to the appellant, in making this comment, the trial judge made
    the same error that this court addressed in
R. v. Perkins
, [2007] O.J.
    No. 3246.

[5]

We disagree.  First, unlike in
Perkins
, the trial judge did not
    reach outside the evidence to take judicial notice of an adjudicative fact
    relating to a crucial issue in the proceedings, namely the physiological
    functioning of the penis of a virile young man during sexual intercourse. 
    Rather, he assessed the evidence that was before him about how the appellant
    said he and the victim behaved and measured that against a common sense
    understanding of human behaviour in the context of whether the sex was
    consensual.  This is not an error.

[6]

Second, read as a whole, the trial judges reasons do not support a
    conclusion that his comments in paragraph 68 were essential to his rejection of
    the appellants evidence.  He also found the way in which the appellant
    described how the sex ended as being inconsistent with the appellants other
    evidence about the nature of his interactions with the complainant and he found
    that the appellants evidence that he and the complainant heard the only couple
    in the house having sex and paused during intercourse to laugh about it was
    contradicted by the evidence of the other couple that they did not have sex
    that night.  Given this, it is not reasonable to conclude that the trial judges
    assessment of the appellants evidence would have been different had he not
    found that it was at odds with common sense because it did not include a real
    explanation for why the parties did not continue their sexual activity until
    one or both reached sexual climax.

[7]

There are also two reasons why the appellants second ground of appeal
    cannot succeed.  First, collusion was not alleged by defence counsel in his
    submissions at trial.  Second, there was no air of reality to the possibility
    of collusion, which connotes more than the fact that two witnesses have
    discussed their evidence.  (
R. v. R.G.L.
(2004), 185 C.C.C. (3d) 55
    (C.A.) at para. 37 (per Weiler J.A. in dissent, but not on this point).

[8]

For these reasons, the appeal is dismissed.

K.
    Feldman J.A.

M.L.
    Benotto J.A.

Sachs
    J. (ad hoc)


