



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2)
    Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of
    the information is made in the course of the administration of justice, if it
    is not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access
    to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or
    section 129 (no subsequent disclosure) of this Act, or subsection 38(1)
    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no
    subsequent disclosure by school) or (1.15) (information to be kept separate),
    45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(a) is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary
    conviction.




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.-E. M.-C., 2020 ONCA 140

DATE: 20200221

DOCKET: C64754

Lauwers, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.-E. M.-C.

Appellant

Margaret Bojanowska, for the appellant

Lauren Lindsay, for the respondent

Heard: February 14, 2020

On appeal from the conviction entered on June 7, 2016 by
    Justice Michael Block of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

This is an appeal from conviction for sexual assault. The events
    occurred in a high school math class. The complainant testified that the
    appellant took her phone and so she took his hat. A chase ensued, ending at the
    back of the classroom where the complainant said that the appellant stood
    behind her, wrapped his arms around her, and touched her vaginal area for what
    felt like a minute. She was in a crouched position when the touching took
    place.

[2]

There were two other witnesses to the alleged events. They described
    what they saw somewhat differently than the complainant. Another student said
    that she saw the complainant on the floor at the back of the classroom, with
    the appellant off to her side, touching her stomach with one hand, and her
    vaginal area with the other. The teacher also testified, recounting what she
    saw. The teacher said that the complainant looked like she was kneeling on the
    ground with the appellant behind her, reaching around to her front in what
    appeared to be a bear hug. Their backs were to the teacher and so she could not
    see what the appellant was doing with his hands.

[3]

The appellant argues that the trial judge erred by finding that the
    witnesses accounts corroborated the complainants account without first satisfactorily
    resolving the differences in the three witnesses evidence about what they
    observed.

[4]

The trial judge was under no obligation to recount the minute details of
    each witness evidence. Nor was he required to resolve every inconsistency in
    that evidence. He recounted the important aspects of their evidence, as
    reviewed above, and concluded that there were no significant contradictions
    in the evidence given by them. This was a conclusion that was available on the
    evidence. While the complainant described the entire incident as she
    experienced it, the other witnesses were describing only the parts of the
    incident that they witnessed from different vantage points within the
    classroom. The discrepancies in the evidence can be understood as a natural
    consequence of the fact that the witnesses were positioned differently within
    the classroom and did not see the same parts of the event. Accordingly, we do
    not accept the suggestion that the trial judge erred in concluding that the
    evidence of the other student and teacher corroborated the complainants
    account.

[5]

The appellant also suggests that the trial judge erred by failing to
    consider that the complainant gave contradictory accounts relating to how many
    times the appellant inappropriately touched her in the classroom over a period
    of time leading up to and culminating in the event at the back of the
    classroom.

[6]

The complainant told the police that the touching had occurred more
    frequently than she testified to at trial. The trial judge confronted this
    inconsistency, finding that it was not a serious discrepancy. In arriving at
    this conclusion, the trial judge took into account the complainants age and
    apparent immaturity, as well as the over one-year lapse in time between the
    incidents and trial. The trial judge concluded that, in light of these
    circumstances, it did not surprise him that the complainant did not have a
    perfect recall of the precise number of incidents that were involved.

[7]

We see no error in this reasoning. It was open to the trial judge to
    make observations about the complainants level of maturity as she presented in
    the witness stand. He was in a good position to do so. Moreover, it was open to
    him to apply the common-sense proposition that the passage of time could have
    an impact on her memory as to the number of times she may have been touched by
    the appellant. We would defer to that finding.

[8]

The appellant also points to an aspect of complainants
    cross-examination that he says so seriously undermines her credibility that it
    required the trial judge to specifically address the issue. The complainant was
    asked whether she disagreed that she had told the police that the appellant had
    touched her on ten prior occasions: Do you disagree that thats what you said
    to the police? The complainant responded with a simple yeah. Crown counsel
    sought immediate clarification as to whether the witness was answering that she
    agreed or disagreed with what had been put to her. While the question was
    clarified, the witness was never asked to clarify her answer.

[9]

The appellant relies upon this passage from the cross-examination to
    suggest that, by denying what was reflected in the transcript of the police
    interview, the trial judge erred by not specifically resolving this obvious
    credibility concern. We do not agree.

[10]

Read in context, the question was at best confusing. It is unclear
    exactly what the complainant was agreeing to when she said yeah. Although it
    would have been preferable to have her answer clarified in re-examination, the
    matter was not so central that it demanded specific attention by the trial
    judge. He was clearly alive to the discrepancies between the complainants statement
    and her trial evidence, specifically as it related to the number of
    inappropriate contacts prior to the date of the alleged offence. As the trial
    judge found, the complainant did not brazenly deny apparent gaps or
    inconsistencies between her evidence and her statement to the police and
    allowed that her memory might well be flawed, especially in respect of contact
    with the defendant prior to October the 31st, 2014. It was open to the trial
    judge to come to this conclusion in light of the record before him. We would
    defer to his conclusions in this regard.

[11]

The appellant also suggests that the trial judge erred by failing to
    deal with the suggestion of collusion between the complainant and another
    classmate. As framed at trial, the issue was whether there was active
    fabrication arising from collusion. The appellant seems to have moved away from
    this suggestion on appeal, and now suggests that the trial judge failed to
    consider whether there was an inadvertent tainting of the witness evidence
    arising from the discussions between the complainant and witness.

[12]

The trial judge dealt with the issue of collusion as framed at trial and
    concluded that there was none. We see no error in his approach. Nor do we
    accede to the submission, as reframed on appeal, that the simple fact that the
    complainant and other witness discussed the matter leads to a necessary
    inference that the other student had a false memory created. There is no
    evidence of this. Indeed, the differences between the complainants and other
    students evidence suggests there was no explicit or implicit collusion.

[13]

The appellant further suggests that the trial judge ignored the
    complainants animus toward the appellant which he says gave rise to a motive
    to lie about the alleged event. The trial judge specifically adverted to the
    suggestion of animus and rejected it as a possibility. As he stated:

I do not think that [the complainant] had any animus towards
    [the appellant]. It was plain that she found his attentions bothersome, she had
    no particular memory of discord over the volume of her music at the end of
    classI think her evidence was measured, and she took pains not to exaggerate
    the level of interaction with [the appellant], or suggest that he may have some
    powerful attraction to her as a way of explaining his attentions.

[14]

The trial judge was alive to the assertion of animus but rejected it. It
    was open to the trial judge to come to this conclusion and we see no basis upon
    which to interfere.

[15]

The appeal is dismissed.

P.
    Lauwers J.A.

G.T. Trotter J.A.

Fairburn J.A.


