



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Eaton, 2019 ONCA 891

DATE: 20191113

DOCKET: C59587

Lauwers, van Rensburg and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Eaton

Appellant

David Eaton, self-represented

Erica Whitford, for the respondent

Heard:  November 4, 2019

On appeal from the conviction entered on November 12,
    2013 and the sentence imposed on July 2, 2014 by Justice G. Toscano-Roccamo of
    the Superior Court of Justice.

REASONS FOR DECISION


[1]

The appellant was convicted of sexual assault
    in November, 2013. He was sentenced in July, 2014 to 18 months custody, after
    credit of six months, followed by three years probation.

[2]

In his sentence appeal, the appellant made a
    claim of ineffective assistance of counsel. He asserted that his lawyer,
    contrary to his instructions and interests, had requested a fitness assessment
    during the sentencing proceedings. At the hearing of the appeal, the appellant
    asserted that he had been denied additional disclosure from the Crown, for the
    purpose of arguing in his sentence appeal, and to support a different argument
     that, contrary to the fitness assessment, he was not in fact fit when he was
    sentenced, and that he was subject to segregation and psychological harm in
    serving his sentence.

[3]

The appellants sentence has been served. There
    is no reason to address his sentence appeal, which is moot. Indeed, the
    appellant confirmed that his objective in pursuing the appeal is to avoid a
    criminal record for sexual assault. As such the focus is on his conviction
    appeal.

[4]

The appellant raises two grounds of appeal from
    conviction. First, he says that the trial judge reversed the onus of proof and
    required him to disprove the complainants account of what transpired at the
    time of the alleged sexual assault. Second, he says that the trial judge erred
    in admitting into evidence his statement to the police, after concluding that
    it was voluntary and did not violate his
Charter

rights.

[5]

The trial judge gave thorough and careful
    reasons both in respect of her
Charter
ruling and in finding the appellant guilty of the offence of sexual assault.

[6]

We see no error in the trial judges analysis
    and conclusions.

[7]

With respect to the first ground of appeal, the
    appellant points to para. 53 of the trial judges reasons as indicative of her
    having reversed the onus of proof. We disagree. The fact is that the appellant did
    provide an account of the sexual encounter that differed from that of the
    complainant. In paragraph 53 the trial judge explains why his evidence did not
    leave her in a reasonable doubt on the issue of consent.

[8]

There is no basis, on a fair reading of the
    entirety of the trial judges reasons, to conclude that she reversed the burden
    of proof or in any way put the onus on the appellant to disprove the
    complainants account. Rather, she pointed out the numerous inconsistencies in
    the appellants own account of what transpired, that led her to conclude that
    the appellant was not providing truthful or reliable evidence. Only after
    explaining why she did not accept the appellants evidence, and that it did not
    raise a reasonable doubt, did the trial judge evaluate the complainants
    evidence and conclude that she was satisfied beyond a reasonable doubt as to
    the appellants guilt.

[9]

We also see no error in the trial judges
    conclusion that the appellants police interview was admissible in evidence as
    a voluntary statement and obtained without any breach of his
Charter

rights.

[10]

We agree with the trial judges analysis of the
Oickle

factors (
R. v. Oickle
, 2000 SCC 38) and her
    conclusion that the appellant attended voluntarily to speak with Sergeant
    Harding, in an effort to distance himself from the allegations of sexual
    assault made by the complainant.

[11]

We also see no reason to interfere with the trial judges conclusion
    that the appellant was not detained when he gave his statement. This was fully
    supported by the evidence at the
voir dire
:
    the appellant attended at the police station knowing that he was a suspect in a
    sexual assault and that the complainant said that she had not consented to the
    sexual encounter. He was invited to provide his own account, which he did,
    albeit stating, untruthfully, that there had been no sexual contact. He was
    told repeatedly that he did not have to say anything, and he was offered the
    opportunity to consult with legal counsel. The trial judge explained why she
    rejected the appellants contention that he had been ordered to attend, and
    his conflicting evidence about what he was told, which in some respects
    differed from what was depicted on the video recording of the interview.

[12]

While the trial judge ought to have applied the
Grant

factors (
R. v. Grant
,

2009 SCC 32) rather than those in
R. v. Moran
(1987), 36 C.C.C. (3d) 225
    (Ont. C.A.) in determining whether the appellant was detained, we are satisfied
    that the result would necessarily have been the same. The trial judges reasons
    for rejecting the appellants evidence, and her observations of what occurred
    during the interview fully support the conclusion that he was not
    psychologically or otherwise detained at the time of his interview.

[13]

For these reasons we dismiss the appeal from conviction and the
    sentence appeal.

P. Lauwers J.A.

K. van Rensburg J.A.

C.W. Hourigan J.A.


