



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. A.B., 2021 ONCA 752

DATE: 20211025

DOCKET: C67823

Simmons, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.B.

Appellant

Phillip Millar, for the appellant

Nicholas Hay, for the respondent

Heard: October 18, 2021 by video conference

On appeal from the conviction entered by Justice J.
    Donohue of the Superior Court of Justice on December 20, 2019.

REASONS FOR DECISION

[1]

Following a
judge alone trial, the appellant was
    convicted of sexual assault and sentenced to two years imprisonment. He
    appeals against conviction.

Background

[2]

The complainant and the appellant are distant
    relatives but were not well acquainted in April 2018 when the events giving
    rise to the charge took place. The complainant was 19 at the time; the
    appellant was 48.

[3]

Following
several hours of socializing during
    which both consumed alcohol and marijuana, the two went for a drive. After the
    appellant's truck became stuck on a muddy road, the complainant tried to push
    the truck from the mud on her own and lost her shoes in the process. The
    appellant went for help, leaving the complainant on her own in the truck
    without the keys for about 45 minutes to an hour.

[4]

The
trial judge accepted the complainant's
    evidence that she fell asleep following the appellant's departure and later
    awoke to find him having sexual intercourse with her. Further, the trial judge
    rejected the appellant's evidence that he first performed oral sex on the
    complainant's implicit invitation before engaging in sexual intercourse with
    her.

[5]

Among other things, the trial judge found as a
    fact that, on the morning following the events, the appellants initial
    interaction with a cousin amounted to an admission of having committed a sexual
    assault. In the trial judge's view, the appellant subsequently modified his
    position to being an acknowledgment that consensual sex should not have
    occurred in all the circumstances.

[6]

In any event,
the trial judge was satisfied that
    the complainant fell asleep as a result of drinking and consuming drugs while
    the appellant went for help. Accordingly, the complainant was not capable of
    consenting to sexual intercourse.

[7]

Further,
even on the appellant's own version of events,
    the trial judge was satisfied that the complainant said nothing that would
    constitute consent to intercourse following oral sex.

[8]

Finally, the trial judge was satisfied that even on his own version of
    events, the appellant did not have an honest but mistaken belief in consent as
    he had not taken reasonable steps to ascertain that the complainant was
    consenting taking account of the following factors:

-

the
complainant had been drinking and smoking
    pot over several hours;

-

the
complainant's behaviour, in trying to push
    the truck out of the mud on her own was bizarre; and

-

neither had previously expressed any sexual interest in the other.

[9]

In
the trial judge's view, on
    the appellant's own evidence, the appellant was reckless or wilfully blind to
    the lack of consent.

The appellants position on appeal

[10]

On
appeal, the appellant submits that the trial
    judge misapprehended the evidence concerning the appellants after-the-fact
    conduct; failed to address whether the appellant's evidence raised a reasonable
    doubt in accordance with
W.(D.)
[1]
; and
    failed to properly consider the reasonable possibility arising from the
    circumstantial evidence that the sexual contact had been consensual.

Discussion

[11]

We
do not accept these
    submissions.

(i)

The
    misapprehension of evidence issue

[12]

The
complainant's cousin gave
    evidence that included the following. On the morning after these events, the
    appellant had a concerning look on his face and asked to speak to her. He just
    started saying, I fucked up. I fucked up. I fucked up. Can you find it in your
    heart to forgive me? The appellant appeared hysterical and started talking
    about himself and the complainant. After he calmed down, the appellant said he
    had sex with the complainant because she asked him to keep her occupied.
    However, he said was taken aback when, afterwards, the complainant was upset.

[13]

In
our view, it was open to the trial judge, on
    the basis of this evidence, to conclude that the appellant's initial statements
    to the complainant's cousin amounted to an acknowledgment of having committed a
    sexual assault and that the appellant modified this acknowledgment as time went
    along. It was the trial judges function, as the trier of fact, to determine
    what, if any, significance should be attributed to this evidence. Given the
    witnesss description of the appellants statements and demeanour, we see
    nothing unreasonable about the trial judges conclusion.

[14]

Moreover,

we are not
    satisfied that the trial judge misunderstood the evidence concerning whether
    the complainant complained to her grandmother prior to this discussion. The
    trial judge gave his reasons orally the day after the evidence and submissions
    were completed. Although in his initial summary of his assessment of the
    evidence, the trial judge said the complainant complained to her grandmother
    immediately upon arriving back at her grandmothers residence, the trial judge
    later clarified when reviewing the evidence that the complainant disclosed the
    events after she had had a rest.


[15]

Further,
even assuming the trial judges
    reference to an "official complaint" means he thought the appellant
    spoke to the complainant's cousin after the complainant complained to her
    grandmother, we reject the appellant's submission that this somehow taints the
    trial judges finding that the appellant made an admission of guilt. The trial
    judge made his finding based on what was said, not based on the timing of the
    events. The appellant's submissions about the complainant's cousin's subsequent
    text to the complainant giving rise to a motive to fabricate were not raised at
    trial. In any event, the text did not refer to the appellant's statements about
    he and the complainant having sex.

(ii)

The
W.(D.)
issue and the circumstantial evidence issue

[16]

In
our view, the appellant's submissions about the
    manner in which the trial judge weighed the evidence and the inferences arising
    from the circumstantial evidence are nothing more than a request that we retry
    the case. That is not our function.

Disposition

[17]

Based,
on the foregoing reasons, the appeal is dismissed.

Janet
    Simmons J.A.

P.
    Lauwers J.A.

G.
    Pardu J.A.





[1]

R. v. W.(D.)
, [1991] 1 S.C.R. 742.


