



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.H.M., 2018 ONCA 503

DATE: 20180531

DOCKET: C64075

Strathy C.J.O., Juriansz and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.H.M.

Appellant

Michelle M. Dwyer, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: May 25, 2018

On appeal from the conviction entered on December 14,
    2016 and the sentence imposed on April 7, 2017 by Justice Gordon D. Lemon of
    the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault and common assault. He was
    sentenced to 42 months imprisonment (less six months for pre-sentence custody)
    on the former and one year concurrent on the latter. He appeals his conviction
    for sexual assault. He has abandoned his sentence appeal.

[2]

The trial turned entirely on the credibility of the complainant on the
    one hand, and whether the appellants evidence raised a reasonable doubt on the
    other.

[3]

The complainants evidence was that the appellant had attacked her and
    forced sexual acts on her. The appellant portrayed himself as a Good Samaritan
    who had invited her into his home to do her laundry and shower. He said the
    sexual activity was consensual and that it was only after he refused to give
    her money that she ran out of the house naked on a cold February day and
    screamed, Hes trying to rape me.

[4]

At the outset of his reasons, the trial judge correctly instructed
    himself on the requirements of
R. v. W.(D.)
, [1991] 1 S.C.R. 742. He
    reviewed the evidence. He noted that there were significant problems with the
    credibility of both the complainant and the appellant.

[5]

He observed that if there were no corroborative evidence, he could
    easily reject the evidence of both. On appeal, the appellants argument was
    that the evidence referred to by the trial judge was not sufficiently
    corroborative.

[6]

We do not accept that submission. The trial judge found corroboration in
    the fact that the complainant fled the house naked in February, leaving all her
    belongings behind, including some in the washing machine. He also found corroboration
    in the neighbours description of the complainants state and demeanor on
    fleeing. These, in his words, provided powerful confirmation of her evidence
    of being sexually and physically assaulted.

[7]

The trial judge was entitled to find corroboration in this evidence and
    we see no errors in his conclusions. Accordingly, the appeal is dismissed.

G.R. Strathy C.J.O.

R.G. Juriansz J.A.

C.W. Hourigan J.A.


