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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

486.4(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.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-04-21

Docket: C60800

Panel: Gillese, Brown and Roberts JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Yannick Mugabo Appellant

Counsel

For the Appellant: Howard L. Krongold

For the Respondent: Jessica Smith Joy

Hearing

Heard: April 7, 2017

On appeal from: The conviction entered on February 5, 2015 by Justice Peter D. Griffiths of the Ontario Court of Justice.

Decision

Gillese J.A.:

[1] Appeal from Conviction for Sexual Assault

[1] This is an appeal from conviction for sexual assault. For the reasons that follow, I would dismiss the appeal.

Background in Brief

[2] The complainant and the appellant, Yannick Mugabo, were acquaintances. They encountered each other in the early morning hours of August 7, 2013, in Ottawa, after the bars had closed. Both had been drinking. Along with some other friends and acquaintances, they went to Jarett Lopez's apartment, where they continued to party. After further drinking and use of marijuana, the complainant went to sleep in a back bedroom of the apartment while still fully clothed.

[3] The complainant testified that she awoke at approximately 8:00 a.m. to find a man penetrating her vagina from behind. She was lying on her stomach and the man was lying on her back. The curtains of the bedroom window were open and it was daylight. The complainant was able to identify the man as Mr. Mugabo because she looked down and saw his black legs. No one else in the apartment at the time of the assault was black. The complainant wiggled around, trying to get the man off of her. He whispered in her ear while on top of her. Then he got off of her and briefly sat on a little chair in front of a computer in the bedroom. After pulling on his pants, he left the bedroom.

[4] The complainant followed shortly thereafter and went into the living room. Mr. Mugabo was in the living room along with two others – Mr. Lopez and Will Milner. The complainant was, by her own description, "hysterically crying". Mr. Lopez and Mr. Milner both observed that she was visibly upset. The complainant accused Mr. Mugabo of having non-consensual sex with her. Mr. Mugabo denied this. He was asked to leave the apartment and he did so.

[5] Later that same day, the complainant went to the hospital for a sexual assault examination. The sexual assault examination was performed by Christine Baker, a sexual assault nurse. At her request, the complainant was administered drugs for the treatment of sexually transmitted diseases and to prevent impregnation. To prevent her from contracting HIV, she also started on a course of medication that would last a month. The anti-HIV medication's potential side effects were serious. The sexual assault nurse testified that it was her general practice to advise patients of the potential side effects before administering medications.

[6] Ms. Baker conducted an exacting investigation of the condition of the complainant's internal and external genitals. Such examinations generally last between four and six hours.

[7] On the external examination, the nurse found abrasions, tears, and three areas of great tenderness on the pubic bone and around the vagina. On the internal examination, the nurse noted a visibly swollen right vaginal wall, redness and abrasions. The swollen area was extremely tender to the touch. During the internal examination the complainant was sobbing in pain. The nurse also testified that the complainant complained of relatively severe pain.

[8] The nurse observed a white liquid in the complainant's vagina, which was swabbed and included in the sexual assault evidence kit. The discharge was described as milky, white and "sort of stretchy". Ms. Baker did not see any signs of infection to which the discharge might have been attributable.

[9] At trial, the Crown witnesses were the complainant, Ms. Baker, Mr. Lopez and Mr. Milner. Ms. Baker had 18 years of experience as a registered nurse, 16 of which had been spent in the hospital's sexual assault and partner abuse program. She was not called as an expert witness and the Crown did not seek to have her qualified as an expert.

[10] The sexual assault medical report was entered through Ms. Baker. It contained information taken from the complainant during the administration of the sexual assault evidence kit.

[11] Ms. Baker gave evidence about her observations of the complainant and her injuries. She said that the abnormalities (swelling, bruising and redness) that she observed in the complainant's genitals weren't commonly present in people "just walking around". She was unable to say what had happened to the sexual assault evidence kit because she left her job at the hospital several days after she performed this examination. She testified that the evidence kit was either lost or destroyed by the hospital. None of the swabs that had been collected had been tested for DNA.

[12] Mr. Mugabo testified at trial and said that he had no sexual contact with the complainant whatsoever and that he had not been in the bedroom alone with her. The defence position at trial was that the sexual assault never occurred – the complainant, as a result of her intoxication, dreamt it or imagined that it had happened.

[13] It was common ground among Mr. Lopez, Mr. Milner and Mr. Mugabo that while the complainant was asleep in the bedroom, Mr. Mugabo went out the front door of the apartment to have a cigarette and was gone for an extended period of time – between 20 and 40 minutes – during which time Messrs. Lopez and Milner stayed at the back of the living room playing video games. The bedroom in which the complainant was sleeping was in the same direction as that which Mr. Mugabo had to take to leave the apartment.

[14] Mr. Lopez and Mr. Milner testified that shortly after the appellant had returned to the living room, the complainant followed, distraught and crying and yelling that Mr. Mugabo had tried to have sex with her.

[15] Following a judge-alone trial, Mr. Mugabo was convicted of sexual assault and two related counts of breach of recognizance.

[16] The trial judge found that, apart from the evidence given by the nurse, there were issues of reliability with all of the witnesses' evidence, primarily because of their levels of intoxication on the night in question. He gave a detailed description of the nurse's "independent sober evidence" about the history she had taken from the complainant, the examinations she had performed on the complainant and her findings from those examinations, and the medications she had administered to the complainant.

[17] In his reasons, the trial judge then made the following comment (the "Impugned Comment"):

I would remark on two things, [the sexual assault examination] is not an examination that would lightly be undertaken unless the complainant was sexually assaulted and secondly, that the evidence of the injuries to her vagina and genitals externally are consistent with intercourse, painful intercourse.

[18] He found, beyond a reasonable doubt, that the complainant was "subjected to painful intercourse some hours prior to going to the hospital".

The Issues

[19] Mr. Mugabo submits that the trial judge erred:

1. in placing "determinative" weight on the complainant's willingness to undergo a sexual assault examination and to receive prophylactic medications;

2. in finding that the complainant had been subjected to "painful intercourse"; and

3. by reversing the burden of proof.

Analysis

1. The Complainant's Willingness to Undergo a Sexual Assault Examination

[20] Relying on the Impugned Comment, the appellant submits that the trial judge erred by placing undue weight on the complainant's willingness to undergo a sexual assault examination and to take medication to prevent HIV. He says that, just as it is an error to find a complainant more credible for having pursued a complaint, it was an error to put "excessive reliance on the supposed negative consequences" of having undergone a sexual assault examination. He further says that there was no evidence to support the Impugned Comment because the complainant did not testify that she was reluctant to undergo the examination and there was no evidence that she was informed of the potential side effects of taking the anti-HIV medication, or even that she completed the 28-day prescription.

[21] I reject this submission.

[22] The appellant is correct when he says that the trial judge took into consideration the onerous process that the complainant went through on the sexual assault examination. However, it is not correct to say that the trial judge placed undue weight on that fact or that his consideration of it was "determinative". In finding beyond a reasonable doubt that Mr. Mugabo committed the sexual assault, the trial judge relied on his findings of fact: the complainant's physical injuries, observed approximately 12 hours after the incident, which were consistent with forced sexual intercourse; the complainant's demeanour after the assault; her actions after the assault, including seeking treatment; the complainant's positive identification of Mr. Mugabo as the perpetrator; and, that Mr. Mugabo had the exclusive opportunity to commit the sexual assault.

[23] Furthermore, it is important to put the Impugned Comment in the context of the defence advanced by the appellant at trial. The Impugned Comment was made in response to the defence position that the sexual assault never took place – that the complainant's allegations arose from intoxication-induced dreams or hallucinations.

[24] On a fair reading of the trial judge's reasons, the Impugned Comment simply reflects his view that the presence of the injuries on the complainant's genitals and the fact that she submitted to a sexual assault examination made it unlikely that the complainant had imagined being sexually assaulted. He found that a sexual assault had taken place, in part because of the complainant's physical injuries, as documented through the sexual assault examination. It was clearly open to the trial judge to rely on the nurse's evidence as being supportive of the complainant's version of events: R. v. Dunchie, 2007 ONCA 887, at para. 9.

[25] It is well-established that this court owes deference to a trial judge's findings of fact, including credibility findings. In the present case, the trial judge's credibility assessment of the complainant was informed by a number of factors, including the complainant's observed physical injuries by a trained sexual assault nurse which corroborated the complainant's version of events, the complainant's willingness to undergo the invasive sexual assault examination, and the complainant's demeanour immediately after the assault (crying "hysterically" and shouting that the appellant had had sex with her without her consent). It has long been held that post-event demeanour of a sexual assault victim can be used as circumstantial evidence to corroborate the complainant's version of events: R. v. J.J.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at paras. 40-41.

[26] There was no error in the trial judge's approach to his assessment of the complainant's credibility.

[27] Finally, the trial judge did not misapprehend the evidence. On the record, the complainant voluntarily went to the hospital for the sexual assault examination and agreed to take the various types of medication after having been informed of their possible side effects.

2. The Finding of "Painful Intercourse"

[28] The appellant submits that the trial judge erred in two ways in finding that the complainant was subjected to painful intercourse some hours prior to going to the hospital. First, he says that that the trial judge misapprehended the nurse's evidence in finding that painful intercourse had occurred – the nurse testified that the complainant experienced pain during the sexual assault examination, not that the intercourse had been painful. Second, he contends that, although the nurse had not been called as an expert or qualified as such, the trial judge relied on her opinion to find that the complainant's symptoms during the examination were caused by a sexual assault.

[29] I reject this submission.

The Alleged Misapprehension of the Evidence

[30] Not every misapprehension of evidence will result in a miscarriage of justice; the misapprehension must go to the substance of material parts of the evidence and the errors must play an essential part in the reasoning process leading to conviction: R. v. Lohrer, 2004 SCC 24, [2004] 1 S.C.R. 627, at paras. 1-2; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.

[31] It is doubtful that the trial judge's use of the phrase "painful intercourse" amounts to a misapprehension of the evidence. While the complainant did not testify that the forced intercourse was painful, on a fair reading of the reasons as a whole, it appears that the judge meant that the sexual assault had caused injury to the complainant, resulting in painful after-effects, including those experienced during the sexual assault examination.

[32] In any event, if the trial judge did misapprehend the evidence in saying that the assault was painful, that misapprehension did not render the trial unfair. Striking the word "painful" from his reasons would not leave the trial judge's reasons for conviction on "unsteady ground": Sinclair, at para. 56. What was essential to the trial judge's reasoning was his acceptance of the medical evidence as corroborative of the complainant's testimony that a sexual assault had taken place.

Reliance on the Nurse's Testimony

[33] It is common ground that Ms. Baker could provide evidence of her observations based on the sexual assault examination. The point that divides the parties is her response to a question posed by the trial judge and whether the trial judge improperly relied on it.

[34] The Crown called Ms. Baker to testify to her factual observations of the injuries to the complainant's genitals. It did not seek to qualify Ms. Baker as an expert witness. It did not attempt to elicit any opinion evidence from her. In fact, it expressly stated that it would not ask her to give any opinion or draw any conclusions about the likely cause of the injuries that she observed.

[35] However, in cross-examination, defence counsel put questions to Ms. Baker in which he suggested that there could be multiple causes for the physical injuries that she had observed. He cross-examined Ms. Baker about whether the swelling and abrasions could have resulted from the wearing of tight clothing or having been hit by something. He also posed a series of questions related to whether infection could have caused, among other things, the tenderness that she had noted. Ms. Baker responded that while infection can cause some tenderness, it would not be responsible for the tenderness that she had observed "way up on the pubic bone", that she had seen no evidence of infection and that discharge due to an infectious source also has a "very specific odour", that is easy to identify.

[36] The trial judge then asked whether that odour was present and the nurse said that it was not.

[37] The trial judge then posed the following questions and the nurse gave the following answers:

THE COURT: And the final thing I had to ask is you have carefully taken us through your observations of – of her vagina and the exterior genitals and – and inside the vaginal canal and walls. And you were asked if there were lots of things that could cause this.

A. Yes.

THE COURT: What – what kinds of things would cause this?

A. There have been argument – arguments made for vigorous wiping, you know, riding a bicycle, tight clothing, as was brought up. I can only repeat what I've heard in conference and in studies that there have – there hasn't really been a correlation with vigorous wiping to the specific injuries seen in sexual assault. The location of the injury and the depth and where they're placed. So it's – it's hard to describe it from any other source.

THE COURT: Did – all right. So, wiping, tight clothing. What else would cause an injury like this?

A. Well, the argument has been – like, riding a bicycle. Things like that. So those are the arguments that have been …

THE COURT: Bicycle. Anything else that could cause this other than a bicycle, wiping and tight clothing?

A. I – not that I'm aware of, no. I – in my experience, I know that it's limited to sexual assaults – although I did many other things – I haven't come across other patients in other areas of nursing that have these exact types of injuries caused from regular, every-day sources.

THE COURT: Okay. Thank you.

[38] In re-examination, Ms. Baker clarified that the injuries she had observed were consistent with vaginal penetration by a penis or object and did not fit with wiping, tight clothing, bicycle riding or falling down.

[39] It is in this context that the appellant submits that the trial judge impermissibly relied on Ms. Baker's "expert" evidence.

[40] The Crown did not seek to have Ms. Baker qualified as an expert. It expressly stated that it would ask Ms. Baker only about her observations from the sexual assault examination. It did in fact so limit its questions. There is no error in this: R. v. A.K., 137 C.C.C. (3d) 225, at para. 72.

[41] It was defence counsel, in cross-examination, who elicited opinion evidence from the nurse about whether there might be other causes for the complainant's physical injuries. And it was as a result of defence counsel's questioning that the judge asked the witness for clarification, as he was entitled to do: R. v. Brouillard, [1985] 1 S.C.R. 39, at pp. 44-46; R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, at paras. 63-65.

[42] Defence counsel made a tactical decision to raise causation with the witness. It does not lie in his mouth to now complain that its admission results in unfairness.

[43] Furthermore, the absence of formal qualification of a witness does not necessarily make admission of that person's opinion an error of law: R. v. Marquard, [1993] 4 S.C.R. 223, at p. 244. Relevant factors for the determination of whether its admission was an error of law include whether defence counsel objected to the reception of the evidence at trial; the evidence's role in the decision making process; and whether the witness's experience would have allowed for formal qualification to give the opinion that ultimately was received into evidence: Marquard, at pp. 241-244; R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 381, at para. 180; R. v. M.J.B., 2012 ABCA 119, 285 C.C.C. (3d) 463, at para. 61. For the reasons already given, these factors do not weigh against its admission. Far from objecting to the admission of the evidence, it was defence counsel who elicited it.

[44] In any event, the trial judge did not place undue weight on Ms. Baker's evidence. He merely found that her observations of the complainant's physical injuries were consistent with injuries due to forced intercourse.

3. The Alleged Reversal of the Burden of Proof

[45] The appellant submits that, after finding that the complainant had undergone painful intercourse some hours prior to attending the hospital, the trial judge presumed that the appellant had sexually assaulted her because he had not testified that someone else had sexual intercourse with the complainant within the relevant time period. The appellant says that, in so doing, the trial judge reversed the burden of proof. He contends that, while he did not suggest that he had consensual sex with the complainant on the night in question, there was no evidence that the complainant had not engaged in sexual activity with someone else at a time proximate to that of the alleged assault. He argues that the trial judge erroneously treated the defence position as a concession that if the complainant had sex with anyone at the relevant time, that person was the appellant.

[46] I reject this submission.

[47] In reviewing a trial judge's reasons, an appellate court must read any impugned passage of the reasons within the context of the trial and the reasons as a whole: R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at paras. 16-18; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 15. On a full and fair reading of the trial judge's reasons, it is clear that he understood and correctly applied the burden of proof.

[48] The trial judge referred to the required standard of proof several times in his reasons. He correctly stated the applicable legal principles. He also fairly reviewed the evidence and fairly stated the parties' positions. Both counsel in their closing submissions referred to R. v. W. (D.), [1991] 1 S.C.R. 742 and the trial judge stated, in his reasons, that the principles from that case were operative.

[49] At trial, the defence position was that Mr. Mugabo had never been in the bedroom alone with the complainant. When the trial judge stated, in his reasons, "It is not the defence in this case that something happened but it was not Mr. Mugabo who did it", the trial judge was merely stating the appellant's position, not reversing the burden of proof.

[50] The trial judge considered Mr. Mugabo's denial in light of the whole of the evidence, including the complainant's identification of him as the perpetrator, the nature of the physical injuries that corroborated her description of the sexual assault, Mr. Mugabo's exclusive opportunity to commit the assault, and his adverse findings in relation to Mr. Mugabo's credibility. He was satisfied beyond a reasonable doubt that Mr. Mugabo had the opportunity to commit the sexual assault and took advantage of that opportunity.

[51] There was no reversal of the burden of proof on the part of the trial judge.

Disposition

[52] Accordingly, I would dismiss the appeal.

Released: April 21, 2017

"E.E. Gillese J.A."

"I agree. David Brown J.A."

"I agree. L.B. Roberts J.A."