



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.G., 2019 ONCA 796

DATE: 20191009

DOCKET: C65711

Strathy C.J.O., Doherty and
    Tulloch JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

M.G.

Applicant (Appellant)

Jessica Zita, for the appellant

Gerald Brienza, for the respondent

Heard: October 2, 2019

On
    appeal from the conviction entered by Justice S. Campbell of the Superior Court
    of Justice, dated October 12, 2017, and on appeal from the sentence imposed on
    June 1, 2018.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault
    and sentenced to 14 months in jail, to be followed by 3 years probation. He
    appeals conviction and, if leave is granted, appeals sentence.

[2]

This was a straightforward single-issue case.
    The complainant testified that she did not consent to sexual intercourse with
    the appellant who was her roommate. According to her, she was asleep when the
    appellant penetrated her. The appellant testified that the complainant did
    consent to sexual intercourse. The Crown also introduced a video statement made
    to the police by the appellant after his arrest. The defence agreed that the
    statement was voluntary. Parts of the statement were internally inconsistent,
    but the trial judge found that parts of the statement were inculpatory. He
    accepted those parts of the statement.

[3]

The trial judge rejected the evidence of the
    appellant. He believed the complainants testimony. He also expressly indicated
    that the appellants evidence did not leave him with a reasonable doubt and
    that, on the totality of the evidence, the Crown had proved guilt beyond a
    reasonable doubt.

[4]

The appellant raises several somewhat
    interrelated grounds of appeal. First, he takes issue with several aspects of
    the trial judges analysis of the complainants evidence. He submits that the
    trial judge glossed over certain inconsistencies in her evidence concerning
    the events that ultimately led her to report the incident to the police about
    two months after it occurred.

[5]

The trial judge referred to this evidence at
    length in his summary of the evidence. Parts of the complainants evidence in
    this area could be described as confusing. They were not, however, necessarily
    inconsistent. It was the trial judges responsibility to assess that part of
    the complainants evidence in the context of the totality of the evidence and
    having regard to the only live issue at trial  did the Crown prove that the
    complainant did not consent? There was no error in the trial judges treatment
    of the complainants evidence.

[6]

Next, the appellant argues that the trial judge
    did not properly take into account the appellants intellectual limitations
    when assessing the evidence. The trial judge did take this evidence into
    account when evaluating what he should make of the appellants statement to the
    police. The defence had argued that the appellants intellectual limitations
    explained many of the deficiencies in his statement.

[7]

The trial judge, who had the advantage of seeing
    the video, concluded that the appellants intellectual limitations played no
    role in his ability to comprehend and respond to the questions put to him by
    the police officer. The trial judge gave reasons for that finding. They are
    unassailable. The trial judges failure to refer specifically to a
    psychological report prepared many years earlier when the appellant was in
    grade one, and entered through the appellants mother, is of no consequence.

[8]

The argument that the trial judge engaged in
    uneven scrutiny of the evidence of the appellant and the complainant finds no
    support in the reasons. The trial judge scrutinized all of the evidence
    carefully, including the testimony of the appellant and the complainant. He
    also carefully reviewed the appellants statement to the police and the
    arguments arising out of that statement. The trial judge may not have given
    some inconsistencies in the complainants evidence on peripheral matters the
    significance that the appellant says he should have. However, that does not
    suggest uneven scrutiny.

[9]

The submission that the trial judge determined
    guilt exclusively by treating the case as involving a credibility contest
    between the appellant and the complainant without regard to the burden of proof
    ignores the trial judges repeated references to, and application of, the
    burden of proof as captured in the well-known principles found in
R. v.
    W.D.
The appellants submission that the trial judge decided the case based
    exclusively on a credibility assessment rests on a single sentence in the
    reasons and ignores the repeated earlier references to the burden of proof.

[10]

Finally, the argument that the trial judge
    misapprehended material parts of the evidence cannot succeed. Counsel reviewed
    the findings. In our view, the findings of fact essential to the verdict were
    firmly rooted in the evidence. Even if the trial judge misapprehended evidence
    in respect of a peripheral fact, that misapprehension does not affect the
    validity of the verdict.

[11]

The conviction appeal is dismissed.

[12]

The jail term of 14 months imposed by the trial
    judge was well within the applicable range. The seriousness of the offence and
    the aggravating circumstances (the complainant, who was the appellants
    roommate, was asleep when the assault occurred) warranted a significant
    reformatory term. Fourteen months is well within that range.

[13]

We also would not interfere with the three-year
    probation order imposed by the trial judge. The reasons provided by the trial
    judge provide ample justification for the order. The terms are not particularly
    onerous. It is also open to the appellant, should the proper basis arise, to
    apply to the trial court for early termination of the probation order.

[14]

The appeals from conviction and sentence are
    dismissed.

G.R.
    Strathy C.J.O.

Doherty
    J.A.

M.
    Tulloch J.A.


