R. v. Ukumu, 2021 ONCA 91

Court of Appeal for Ontario

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

DATE: 20210212 DOCKET: C68179

MacPherson, Huscroft and Jamal JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Wopatshu Ukumu Appellant

Counsel: Wopatshu Ukumu, acting in person Lindsay Daviau, appearing as duty counsel Jeffrey Wyngaarden, for the respondent

Heard: February 8, 2021 by video conference

On appeal from the conviction entered on September 30, 2019 and the sentence imposed on February 12, 2020 by Justice Ian F. Leach of the Superior Court of Justice.

REASONS FOR DECISION

1The appellant appeals from his conviction for sexual assault on September 30, 2019 and his sentence of 12 months’ incarceration less credit for 144 days of pre-trial custody on February 12, 2020, both imposed by Leach J. of the Superior Court of Justice.

2On the evening of October 31, 2016, the complainant and a friend went on a date in downtown London. They went to a bar and a restaurant. After leaving the restaurant, they were walking in the downtown area.

3The appellant was driving a car, saw the pair, and pulled up beside them. He offered them a ride, falsely representing to them that he was an Uber driver. During the drive, the appellant told his passengers that they would be his “last fare” of the night.”

4After paying for the ride, the complainant and her friend entered the complainant’s residence. After about five minutes, the complainant noticed the appellant's car idling outside. Soon after, the appellant knocked on the residence door. The appellant told the complainant that she had left something in his car. They walked together to the car. The appellant opened the rear passenger door and pointed to two cards on the floor. The complainant leaned into the car to see if the cards belonged to her friend.

5The appellant then shoved the complainant into the car. He climbed on top of her, kissed her and rubbed her genitalia over her clothing. Eventually, the complainant managed to open the rear passenger door. She fell out of the car and rolled backwards onto the street. At that point, the assault had lasted about two to five minutes. Although she was distraught, she managed to make a mental note of the license plate number.

6The appellant was arrested and proceeded to trial on a single count of sexual assault. Both the complainant and the appellant testified.

7The trial judge found the complainant to be both a reliable and credible witness. In his view, she was clearly attempting to be honest, accurate and fair in her testimony. Moreover, her evidence was corroborated by her demonstrated injuries.

8The trial judge found the appellant to be reliable, but not credible. He labelled the appellant’s exculpatory version of the events (mutual sexual contact in the car) “incredible”.

9The appellant, through duty counsel, raises two issues on the conviction appeal.

10First, the appellant contends that the trial judge provided uneven scrutiny of the testimony of the appellant and the complainant.

11We do not accept this submission. In R. v. Kiss, 2018 ONCA 184, this court said about the different levels of scrutiny issue, at para. 83:

This is a notoriously difficult ground of appeal to succeed upon because a trial judge’s credibility determinations are entitled to a high degree of deference, and courts are justifiably skeptical of what may be veiled attempts to have an appellate court re-evaluate credibility. An “uneven scrutiny” ground of appeal is made out only if it is clear that the trial judge has applied different standards in assessing the competing evidence. [Citations omitted.]

12The appellant cannot clear this high bar in this appeal. The trial judge engaged in a comprehensive assessment of the complainant’s testimony, including her credibility. He was alive to the potential issues respecting her credibility - for example, her lack of memory about some aspects of the evening’s events and her willingness to disclose things about herself (her consumption of drugs on the night in question) that might give rise to a negative assessment of her testimony. Moreover, the trial judge dealt with every issue raised by defence counsel at the trial. This is the opposite of uneven scrutiny.

13Second, the appellant asserts that the trial judge erred in his treatment of the complainant’s alleged motive to fabricate evidence against him.

14We are not persuaded by this submission. The trial judge said:

Finally, while there most certainly is no onus on Mr. Ukumu to establish a reason for [the complainant] to fabricate a false claim of sexual assault, I think the absence of any realistic motive on the part of [the complainant] to do so is a relevant consideration in assessing her credibility.

In my view, the real reason why there is no sensible explanation for [the complainant] making a sudden and abrupt transformation from willing participant in sexual activity, to a vindictive complainant intent on fabricating false allegation of sexual assault, is that she was never a willing participant in such activity.

15We see no basis for criticizing this analysis and conclusion.

16On the sentence appeal, the appellant submits that his sentence should be reduced from 12 months to 6 months, essentially for potential immigration reasons. He has lived in Canada for nine years.

17Although we are sympathetic to some of the appellant’s personal circumstances, including a potentially precarious immigration situation, we cannot say that a 12-month sentence for a random and violent sexual assault on a complete stranger is unfit in any way.

18The appeal is dismissed.