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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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.

COURT OF APPEAL FOR ONTARIO DATE: 20240214 DOCKET: C69699

Doherty, Gillese and Nordheimer JJ.A.

BETWEEN

His Majesty the King Respondent

and

Edson Neto Appellant

Counsel: Megan Savard and Ava Armand, for the appellant Heather Fregeau, for the respondent

Heard: January 10, 2024

On appeal from the conviction entered on February 22, 2021, by Justice Susan M. Magotiaux of the Ontario Court of Justice.

REASONS FOR DECISION

I. OVERVIEW

1Edson Neto (the “appellant”) was charged with one count of sexual assault causing bodily harm for an incident that took place on August 1, 2018, and several human trafficking offences alleged to have taken place over a six-month period in 2018.

2The trial judge convicted the appellant of sexual assault causing bodily harm but acquitted him of the human trafficking counts. The appellant was sentenced to six years in prison. He appeals against conviction.

3At trial, the complainant testified that the appellant violently penetrated her vaginally until she bled, as punishment for her having run away from him. A hospital examination later on the day of the alleged assault revealed a “gross amount of bleeding” from the complainant’s vagina, tears to her labia, abrasions to her inner thigh, and visible swelling and tenderness between her vagina and anus. The appellant testified at trial and said that he was with the complainant on the night in question but did not have sex with her because she “was on her period”.

4This appeal turns on whether it was open to the trial judge to find the medical evidence confirmatory of the complainant’s evidence relating to the sexual assault. For the reasons that follow, we find that it was.

5Accordingly, the appeal is dismissed.

II. BACKGROUND

6On July 24, 2018, the complainant was directed to Durham Regional police after she attempted to commit suicide. She told the police she was the victim of human trafficking and wanted to give them a statement. She expressed a strong fear for her safety. She said she was being pimped by a man known as “Sean” and another male whose name was similar to “Edison Neto” of St. Catharines. The Durham Regional police attempted to locate the complainant to take a formal statement, but she disappeared before they were able to do that.

7The Durham Regional police were concerned about the complainant and managed to track her phone on August 1, 2018, to a location in Niagara Falls, Ontario. They obtained the assistance of the Niagara Regional police to locate the complainant.

8At approximately 4:28 p.m. that day, the Niagara Regional police saw the appellant driving the complainant’s car in the parking lot of the Ramada Plaza hotel. There was a male passenger in the car with the appellant, who refused to speak to the police. The appellant was arrested on an unrelated arrest warrant from York Region.

9The Niagara Regional police located the complainant in room 1407 of the Ramada Plaza Hotel, which the appellant had rented on July 31, 2018. When the appellant rented the room, he told the hotel clerk that he and his girlfriend would be staying in it, but the hotel clerk saw only the appellant at that time.

10The complainant told the police she was bleeding vaginally. The police took her to the hospital where she underwent a three-hour sexual assault medical examination. The Sexual Assault Examination Kit (“SAEK”) revealed significant vaginal bleeding, tears to her labia, abrasions on her inner thigh, and visible swelling and extreme tenderness between her vagina and anus.

The Trial

11There were only three witnesses at trial: the complainant, the nurse who examined her at the hospital, and the appellant. There was also a brief agreed statement of facts regarding the way in which the allegations came to light, many of which are set out above. The trial judge noted that, aside from a discrete issue about the admissibility and use of the appellant’s statement to police, the “case comes down to an assessment of the credibility and reliability of the two main witnesses and the application of the standard of reasonable doubt”.

12The trial judge acquitted the appellant of the human trafficking counts because the only evidence on those counts was that of the complainant, and the trial judge had serious concerns about its reliability and some concerns about the complainant’s credibility. She noted that there were no texts or financial records adduced, and no confirmation of details of interactions between the complainant and appellant between February and August 2018 relating to the complainant’s work in the sex trade. Given the appellant’s denials of all such activity, the problems with the complainant’s testimony on those matters, and the lack of extrinsic evidence, the trial judge had a reasonable doubt on the human trafficking counts.

13Because this appeal is only of the conviction for assault causing bodily harm, nothing more is said about the evidence led at trial on the human trafficking counts, apart from that necessary to provide context and background to the complainant’s testimony about what occurred on the night in question.

The Complainant’s Testimony

14The complainant testified that she met the appellant in February or March 2018 while she was working in the sex trade. She said he contacted her by text through an ad on Backpage, an online classified advertising website. They first met at a restaurant in Niagara Falls. She went to the restaurant thinking she was meeting only with the appellant, but he had two friends with him. After the restaurant, she said that all four went to her hotel room. When the appellant’s two friends left and the complainant was alone with the appellant in her hotel room, she said that he changed. He hit her and called her names, and she became fearful. The appellant told her she was his and not going anywhere. He forced her to work in the sex trade for him in Niagara Falls for about three weeks, using threats, physical violence, and isolation, taking away her car and her phone. He made the arrangements for her sex work, controlled everything, and took all the money that she made from her work.

15The complainant had a home and children in Bowmanville. She managed to get the appellant – accompanied by two of his friends – to take her back to her home in Bowmanville. Eventually she got the appellant to leave her home. Although the appellant left Bowmanville, he continued to harass the complainant, saying he was entitled to a percentage of the money she made or she had to work for him.

16The complainant returned to Niagara on July 31, 2018. Her initial version as to how and why differed significantly from the version which she gave at trial. She said she had not been lying but was in a bad state and had experienced significant trauma in her life which explained the mistakes. She acknowledged that she had significant memory problems.

17The complainant testified that on her arrival in Niagara on the night in question, she entered a hotel and knocked on the appellant’s door but he wasn’t there. Instead, he emerged from the stairwell, confronted her, and told her to get into the room.

18Once in the hotel room, the complainant said the appellant violently raped her. She said he grabbed her, threw her on the bed, ripped off her clothes, and started vaginally penetrating her as she bent over the bed. He was so forceful that she was bleeding from the vagina and in a lot of pain. He said it was her “discipline” or punishment for running away from him and if she ever ran from him again he would “rape [her] in the ass like that”. She said he used his hands to choke her. When the assault ended, she said the appellant washed up, showered, and left, taking her car. She tried to clean up but could not stop the vaginal bleeding so went to buy tampons to try and deal with that. The appellant came back and brought her cocaine, telling her to post her ad and start working.

19A few hours later, the Niagara Regional police arrived at the hotel room, even though she had not called them or reported anything. As explained above, the complainant had spoken to the Durham Regional police informally about a week before the assault. The Durham Regional police had tracked her phone to Niagara Falls and asked the Niagara Regional police to go to the location to check on her.

20After she had gathered her things from the hotel room, the police took the complainant to the hospital for a sexual assault examination, which lasted from approximately 9:00 p.m. to 12:00 a.m. The complainant then went directly to the Niagara police station to give a statement. This statement was taken in the early morning of August 2, 2018. The complainant gave another statement, this time in Durham, on the afternoon of August 2.

The Nurse’s Testimony

21The nurse who conducted the SAEK testified at trial; her notes and records were entered on consent. She said that, while there were no immediately visible injuries, when she observed the complainant’s pelvic area, she saw numerous abrasions, lacerations, and a “gross amount of bleeding” in her vagina. There was a medium-sized skin tear on one side of her labia, a small skin tear on the other side, a large area of tenderness between her vaginal opening and her anal region, which had visible swelling, and an area of abrasion on her inner thigh. The nurse could not date the injuries.

22The nurse was able to use a speculum, but she said there was so much blood in the complainant’s vagina that she was unable to make internal observations and could not definitively identify the source of the bleeding. While the nurse’s observations of the blood were consistent with vaginal trauma, she could not rule out menstruation or an internal gynecological complication. The nurse had called an emergency room physician for consultation, but they decided no further intervention was needed.

The Appellant’s Testimony

23The appellant gave a somewhat similar account of his first meeting with the complainant and the following three-or four-week period. He said he and his two friends were in a restaurant in February 2018 when they met the complainant by chance. He said the four of them went to a different bar briefly and then drove to the hotel where the complainant was staying. When his friends were ready to leave, he stayed because the complainant asked him to. He denied any role in sex trade work with the complainant and said he never asked the complainant about her work in it. Although the appellant had both a partner and a girlfriend at the time, he spent time with the complainant in Niagara in the three weeks that followed because he liked her and was ready to “risk it all” for her. After that, the appellant said he decided to go with the complainant to her home in Bowmanville, where he stayed briefly. He left when the complainant – who had gone out to buy weed – texted him and said he should leave because of her ex-boyfriend.

24The appellant’s version of events on the night of July 31 to August 1, 2018, was very different than that of the complainant. He denied having sex with the complainant because she was “on her period”. He said the complainant showed up at about 4 a.m., in a distraught state and desperate because she had lost her children and two homes. He said she looked terrible and, while they were having a normal conversation, she started sniffing cocaine. He thought the poor quality of her cocaine was irritating her sinuses so he offered to get her some better cocaine. He messaged a friend for the cocaine. While he waited for a response, he took the complainant out for food. When they arrived back to the hotel, he got the cocaine and gave it to her. She started drinking alcohol. She wanted to go out but he was tired, so he went to sleep. When he awoke, she was gone. He texted her and asked to borrow her car, to which she agreed. Later in the day, he met up with the complainant outside the hotel, gave her more cocaine, and left in her car. He was arrested shortly afterward, while driving the complainant’s car, on a matter from York Region unrelated to the complainant.

25The appellant gave a video-taped statement to the Durham Regional police, after consultation with counsel, in which he denied both the human trafficking allegations and the allegation he had sexually assaulted the complainant. At this time, the Durham Regional police had spoken with the complainant but not yet taken a formal statement from her.

26The appellant sought to introduce his police statement at trial. The trial judge admitted it under the framework set out in R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, leave to appeal refused, [2010] S.C.C.A. No. 466, and R. v. Liard, 2015 ONCA 414, 327 C.C.C. (3d) 126, leave to appeal refused, [2015] S.C.C.A. No. 402, in so far as it related to his denial of the human trafficking offences.

27The appellant considered bringing an application pursuant to s. 276 of the Criminal Code, R.S.C., 1985, c. C-46, to cross-examine the complainant on other possible causes of the injuries noted in the SAEK evidence. Defence counsel argued that the evidence of the complainant’s injuries was being led to corroborate her version of events and the appellant was entitled to rebut or challenge her version. During submissions, defence counsel stated, “I think, furthest I could really go is to ask [the complainant] whether or not there was anything in or around that time that could have caused those injuries.”

28The trial judge permitted that question to be put to the complainant and stated that, depending on whether the complainant’s answer engaged s. 276, there would be further discussions to ensure both the appellant’s and complainant’s rights were protected. Defence counsel then asked the complainant: “[W]as there anything that occurred in and around that time that could have caused or contributed to those injuries aside from the actions you attribute to [the appellant] on that day?” The complainant responded “No.”

29Defence counsel did not pursue the matter.

The reasons for conviction

30The conviction turned on the trial judge’s assessment of the credibility of the complainant and the appellant, bearing in mind, as the trial judge expressly did, the proper application of the burden of proof as articulated in R. v. W.(D.), [1991] 1 S.C.R. 742.

31The trial judge gave thorough and compelling reasons for finding the appellant had “serious problems with credibility” and “substantial issues of inconsistency, which could go to credibility and reliability”. She rejected the appellant’s denials of human trafficking and sexual assault. She found he was not honest about the nature of his relationship with the complainant in the period from February to August 2018 and that his evidence the complainant was menstruating in the early morning of August 1, 2018, was fabricated as an excuse for the complainant’s bleeding. The appellant’s evidence did not raise a reasonable doubt in the trial judge’s mind, when considered in the context of all the evidence at trial.

32The trial judge also had serious concerns about the reliability of the complainant’s evidence and some concerns about her credibility. In terms of reliability, the trial judge noted the complainant’s admission she was using drugs during the time period covered by the allegations and had experienced physical violence and severe mental health challenges during her life, including during that time period. She noted the complainant’s testimony that due to the trauma she had suffered, brain injuries, and post-traumatic stress disorder, her brain was sometimes “a little foggy” and memories would come to her suddenly and be absent at other times.

33The trial judge addressed several significant inconsistences in the complainant’s evidence but found the complainant’s description of the sexual assault to be consistent throughout the proceeding, including under rigorous, detailed cross-examination. She found the complainant’s evidence that the appellant had “controlled her, threatened her, hurt her, managed her sex trade work, and sexually assaulted her by violent vaginal penetration was unshaken on essential elements.”

34The trial judge found the medical evidence, including the testimony of the nurse who examined the complainant shortly after the alleged assault, was powerful confirmatory evidence of the complainant’s testimony. She found the nurse’s independent observations of significant internal vaginal bleeding, surface abrasions, tenderness and swelling, were consistent with the complainant’s account of a violent sexual assault. The trial judge acknowledged that the nurse could not date the injuries or definitively assign the cause of bleeding but concluded that the observed injuries were powerful confirmation of the complainant’s version of the alleged assault. The trial judge concluded:

I find that the Crown has proved the sexual assault beyond a reasonable doubt. I accept [the complainant’s] evidence with regards to the violent sexual punishment [the appellant] delivered on August 1st, and I find that the vaginal bleeding was caused by the assault and that that injury, coupled with the severe emotional trauma of rape, more than satisfies the bodily harm component.

III. THE GROUNDS OF APPEAL

35The appellant raised a number of grounds of appeal, including whether the trial judge: misunderstood the legal significance of the SAEK evidence; erred in her treatment of the s. 276 application; misapplied the law of fabrication; and, attributed a motive to the appellant in the absence of credible evidence.

36This court found it necessary to hear from the Crown on only one aspect of the first issue: accepting that the medical evidence was independent, was it open to the trial judge to find it was confirmatory of the complainant’s evidence? These reasons address only that matter.

IV. ANALYSIS

37It is trite law that no corroboration is required to prove an allegation of sexual assault. However, in this case, the trial judge had reliability concerns with the complainant’s testimony and, to a lesser extent, credibility concerns. She found the complainant’s account of the assault to be “consistent” and “unshaken” on the essential elements. That, together with the independent medical evidence, satisfied the trial judge of the appellant’s guilt beyond a reasonable doubt on the charge of sexual assault causing bodily harm. We see no error in the trial judge’s treatment of the medical evidence. Her reasons explain why the evidence as a whole, including possible alternative explanations for the blood in the complainant’s vagina, did not leave her with a reasonable doubt.

38The consideration of evidence capable of confirming or supporting aspects of a witness’s testimony is typically part of the assessment of credibility and reliability. Confirmatory evidence is “other circumstantial evidence that tends to support the Crown’s case, or to dispose of alternative hypotheses put forward by the defence”: R v. Primmer, 2021 ONCA 564, at para. 39, leave to appeal refused, [2021] S.C.C.A. No. 462, quoting R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 8, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568.

39In this case, it was open to the trial judge to find that the medical evidence did both: it confirmed the complainant’s account of the assault and it disposed of the defence’s alternative hypothesis that the blood was due to menstruation. While the bleeding alone could have been consistent with menstruation, the complainant’s external injuries were not. The medical evidence of swelling and tenderness between the complainant’s vaginal and anal areas, lacerations to her labia, and abrasions to her inner thigh were consistent with the complainant’s description of the violent sexual assault. They are not consistent with menstruation. Taken together, the complainant’s physical injuries and the “gross amount of bleeding” in her vagina were more consistent with a violent sexual assault than the appellant’s claim of menstruation. In short, this was not a case, as the appellant argues, where the medical evidence was equally supportive of the competing accounts of the appellant and the complainant.

40For similar reasons, we reject the appellant’s submission that the medical evidence was “neutral”. While the bleeding could have been consistent with menstruation, the complainant’s physical injuries were not. The physical injuries, however, were consistent with the complainant’s version of a violent sexual assault.

41It is also significant that the trial judge thoroughly rejected the appellant’s denial he had no sexual contact with the complainant on the night in question. She found his account of why he did not have sex with the complainant on the night in question to be “inconsistent and incredible” and further found he had fabricated his evidence about menstruation to explain the complainant’s bleeding.

42We also reject, as entirely speculative, the appellant’s suggestion that an abusive client or man could have caused the complainant’s injuries. As a precursor to a possible s. 276 application, defence counsel was permitted to cross-examine the complainant about the cause of her injuries, precisely as he had requested. She testified that nothing else could have caused them. Following this, defence counsel chose to not pursue his s. 276 application.

43While the nurse testified that the complainant’s vaginal bleeding could have been consistent with menstruation and the timing of the injuries was uncertain, the trial judge‘s reasons are sufficient to explain why the medical evidence left her with no reasonable doubt on the sexual assault charge. It was open to her to accept the independent medical evidence as confirmatory of the complainant’s explanation for the blood and multiple injuries to her pelvic region. It should be noted that to be confirmatory, the evidence need only restore “the trier’s faith in relevant aspects of the witness’s account”: R. v. Kehler, [2004] 1 S.C.R. 328, at para. 15.

44As the trial judge’s use of the independent medical evidence was proper, there is no basis for appellate intervention.

V. DISPOSITION

45Accordingly, the appeal is dismissed.