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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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).

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 of Appeal for Ontario

Date: January 17, 2017

Docket: C60362

Judges: Sharpe, van Rensburg and Pardu JJ.A.

Between

Her Majesty the Queen

Respondent

and

L.M.

Appellant

Counsel:

Jonathan A. Shime and Wayne A. Cunningham, for the appellant

Lisa Joyal, for the respondent

Heard: November 24, 2016

On appeal from: The convictions entered on October 31, 2014 by Justice Lois B. Roberts of the Superior Court of Justice, sitting with a jury.

By the Court:

[1]

The appellant, L.M., submits that his conviction after a jury trial of sexual assault of his sister-in-law, N.M., was unreasonable and asks this court to set aside the conviction.

[2]

Important aspects of the complainant's evidence, inextricably intertwined with her allegations, were proven to be false, she had a motive to lie, and there were other features of her evidence that would have signalled to experienced jurists that it would be dangerous to convict the appellant on her evidence alone. The appellant submits that the risk of wrongful conviction is too high to allow this verdict to stand.

A. The Trial Evidence

[3]

N.M. is the younger sister of the appellant's wife, K.M. The appellant married K.M. in 1987 and they had two daughters together.

[4]

N.M. was born on August 27, 1981 and came to Canada in October 1996, at the age of 15. The complainant moved in with her older sister, the appellant, their two infant daughters and R.M., the appellant's son by a prior relationship. Her sister was 32 years old and the appellant was 38 years old at the time.

[5]

N.M. lived with the appellant and K.M. until September 2011, when she was 30 years old. The complainant had developed a relationship with a boyfriend. The appellant and K.M. disapproved of this relationship because they believed N.M.'s boyfriend was using her to get status as a permanent resident in Canada. Friction over this issue led the complainant to move out of their home. That same month the appellant reported N.M.'s boyfriend to immigration authorities and advised the complainant that he had done so. Soon after, in October 2011, the complainant went to police, alleging the appellant had had intercourse with her approximately 10-50 times between August 27, 1997 and August 26, 1999, when she was 16 and 17 years old.

[6]

The Crown called two witnesses at trial – N.M. and F.V., a friend of the complainant's sister.

[7]

N.M. testified that K.M. and the appellant treated her as a slave and controlled her from the time she moved in with them. She said that she was not allowed to go to school for her first year in Canada and was required to look after their children. She said she was not allowed to go out with friends, although she was allowed to go to work and school after the first year. She claimed that she was only allowed to visit people in the company of family.

[8]

At trial, it was established that the complainant did attend an educational facility, the Alpha Centre, from the time she arrived in Toronto for approximately a year. N.M. was then registered as a full-time student and started high school in Canada in October 1997. Her older sister stayed at home and looked after the children throughout this time.

[9]

F.V. testified that she socialized with N.M. outside the home, without the appellant or other family members. F.V. and N.M. went shopping together and visited beauty salons.

[10]

A defence witness, F.M., a high school friend of the complainant, testified that she and the complainant hung out together after school. The complainant often went to F.M.'s house on her own and slept over at her home. It did not seem to F.M. that the complainant had a curfew.

[11]

The complainant was employed at Home Sense, Winners and a call centre while living with the appellant and his family. She had her own cell phone and a boyfriend. She travelled freely. For example, she went to Europe in 2008. She maintained control over her own earnings, and bought gifts, paid for her cell phone and saved money for her education.

[12]

The appellant and his family lived at three different locations during the period the assaults were alleged to have occurred.

[13]

The first two were apartments in the same building on Lawrence Avenue East. The first apartment was a small two bedroom apartment. The appellant and his wife shared one bedroom. N.M. shared the second bedroom with the appellant's two young daughters. R.M. slept in the living room.

[14]

From 1997 to 1998, the appellant left the home around 6:00 a.m. to attend school from 8:00 a.m. to 2:00 p.m. He returned home around 2:30-2:45 p.m. to eat or to pick up food at home, which he would bring to his night shift at the Royal Bank of Canada, located in downtown Toronto. His shift started at 4:00 p.m. and ended at midnight. He would arrive home as late as 1:00 a.m. The complainant was also attending school from 1997 to 1998.

[15]

N.M. testified that she was assaulted three or four times by the appellant when the family lived in the two bedroom apartment on Lawrence Avenue. She said the first incident happened when she was 16 years old. She was having an afternoon nap with the appellant's daughter, in the same bed. The younger daughter was taking a nap in a crib in the room. N.M. testified that the appellant woke her to ask where K.M. was. N.M. testified that she answered him but that she fell back to sleep. Although she had been wearing jeans, underwear, a t-shirt and a bra when she fell asleep, she woke to find that her clothes had been removed. The appellant was on top of her and she felt the appellant's penis inside her. She said that she did not wake up when the appellant undressed her.

[16]

N.M. testified that the second incident occurred when K.M. was out of the house overnight for a church function. L.M. denied that his wife ever went away overnight for any such event. N.M. said the appellant had intercourse with her while his older daughter was asleep in the same bed, the younger daughter was in the crib and R.M. was sleeping in the living room.

[17]

N.M. said that third and fourth incidents occurred when K.M. was home and asleep. She said the appellant came into the room she shared with his daughters, woke her, and had intercourse with her on each of those occasions.

[18]

The family moved into a small one bedroom apartment in the same building on Lawrence Avenue East for a few months in 1998. K.M. went to Europe with her daughters for around one month during this time. The complainant alleged that L.M. assaulted her while K.M. and her daughters were away.

[19]

In the second apartment, both the complainant and R.M. slept on mattresses in the living room. The appellant slept in the bedroom. N.M. testified that the first time she was sexually assaulted by the appellant in that apartment, L.M. came into the living room while his son was asleep, took her to his bedroom and had sexual intercourse with her. Subsequently, she would wait until R.M. was asleep and would then go into L.M.'s bedroom. She said they habitually had intercourse at that time.

[20]

In March 1999, the family moved into a two-storey four bedroom home in which N.M. had her own bedroom. The complainant testified that there were at least 10 sexual assaults in that home. She said that the appellant would come to her room to have sexual intercourse with her when K.M. was sleeping across the hall. N.M. only described the first incident that occurred in that home in detail. In describing that assault, the complainant testified that the appellant came into her room after midnight and woke her up. He told her to remove her nightgown and they had intercourse.

[21]

The complainant said the sexual acts stopped after she turned 18 years old on August 27, 1999, when she told the appellant to stop abusing her. She testified that he never tried to have intercourse with her again after she asked him to stop.

[22]

She said she did not seek help from her other family members nor did she ask to move in with them because she was entirely under the appellant's control. She continued to reside with her sister and the appellant until the dispute arose about her boyfriend when she was 30.

[23]

The appellant argued that the complainant falsely accused him of sexual assaults to avenge his having reported her boyfriend to immigration authorities. To rebut the claim of recent fabrication, the Crown called F.V. who surfaced to say that N.M. complained that she had been sexually assaulted by the appellant in 2007. F.V. provided a statement to police on October 20, 2014, just days before testifying. It appeared that N.M. had taken part in a small claims court proceeding that F.V. commenced against the appellant and his wife over the use of a credit card. The appellant argued at trial that F.V. returned the favour by testifying at the criminal trial and falsely supporting the complainant's evidence.

[24]

The appellant testified at trial and denied that he had ever had sexual contact with the complainant. His evidence was unshaken on cross examination.

B. Analysis

[25]

Appellate courts rarely intervene in credibility assessments by a judge or jury, as such determinations attract a high degree of deference: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180. Triers of fact have the inestimable advantage of seeing the witnesses testify and hearing all of the evidence over the course of the trial, which in this case lasted 11 days.

[26]

This court, however, is obligated to review the reasonableness of criminal convictions: Criminal Code, s. 686(1)(a)(i). In exercising this authority, the court must review the trier of fact's credibility assessments and factual findings, bearing in mind the trier of fact's advantaged position and the appellate court's limited scope of review: R. v. M.(N.), 2012 ONCA 296, [2012] O.J. No. 2043, at para. 32.

[27]

There are some cases where judicial experience teaches that the risk of wrongful conviction is simply too high to allow a jury verdict to stand. Where a witness has a motive to fabricate an accusation and falsely describes significant factual matters that are closely connected to or intertwined with the criminal conduct alleged, this sends danger signals to experienced jurists that a jury might not appreciate. The role of the appellate court is not to substitute its own judgment for that of the jury, but to determine whether a properly instructed jury could reasonably have rendered a guilty verdict: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-42.

[28]

As pointed out by Doherty J.A. in R. v. M.(N.), at paras. 33-34:

The reasonableness review provides an important safeguard against miscarriages of justice. In Biniaris, at para. 42, the court described the nature of that review in these terms:

To the extent that it [appellate review] has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. That in turn requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her personal experience and insight.

I understand Biniaris to instruct that the knowledge gained through the reviewing court's broad exposure to the criminal process provides insights into credibility assessments and fact-finding not available to jurors whose experience is generally limited to a single case. Those insights must inform the reasonableness assessment.

[29]

In this case, it is clear that the trial judge had significant misgivings about the credibility and reliability of the complainant's evidence. The trial judge was compelled to sentence the appellant as a result of the jury verdict, and the trial judge made her own findings of fact as required to decide the appropriate and proper sentence to impose. She found that the Crown did not prove beyond a reasonable doubt that any of the sexual assaults occurred, save one in 1999 – the minimum consistent with the jury verdict.

[30]

The complainant's evidence that she was enslaved by the appellant and his family was demonstrably false. At paras. 76-78 of the sentencing judgment, the trial judge rejected entirely the complainant's evidence that she was enslaved by the appellant and his family:

N.M. also testified that she was a virtual slave of L.M. and his wife, her sister K.M. In particular, N.M. said that she was brought over from the Congo to look after their young daughters. Later, she alleged that she was forced to work in the family restaurant without pay. She also complained that she was never allowed to go anywhere. She maintained that after she told L.M. to stop abusing her just after her eighteenth birthday, L.M. started to mistreat her by becoming even more controlling over her so that she felt like a virtual prisoner in her home.

N.M. testified that L.M. and K.M. confiscated her personal papers in order to control her and that when she fled the family home to move into a shelter on September 4, 2011, she left her important identification and other documents behind at the family home.

I am not satisfied that the Crown has proven these aggravating facts beyond a reasonable doubt for the following reasons:

• N.M.'s allegations that she was brought over to look after her young nieces is contradicted by the evidence (which she ultimately accepted) that she started school very soon after she arrived in Canada in October 1996 and that she entered full-time high school in Grade 9 in September 1997. She therefore could not have looked after her nieces on a full-time basis. I accept L.M.'s testimony that N.M. was a full-time student and that his wife looked after their children because it is corroborated and makes sense.

• N.M.'s evidence that she could never go anywhere or do anything was contradicted by L.M. and N.M.'s close friends at school, [F.M.]. She testified that N.M. was permitted to go out with her friends and stay overnight at [F.M.'s] house on weekends. [F.M.] testified that she envied N.M., who did not appear to have a curfew. As already noted, [F.M.'s] father confirmed [F.M.'s] evidence as did other writers of the letters of support who closely interacted with N.M. and her family. Further, the fact that N.M. came and went to her part-time employment at HomeSense and her subsequent full-time employment following her graduation, and could visit F.V. at nail salons, negates N.M.'s assertions that she was a virtual prisoner in L.M.'s house.

• N.M. alleged that her identification and citizenship documents were removed from her room and that she left the house without them on September 4, 2011. She did not see who took her papers or where they were placed. L.M. denied touching N.M.'s papers and stated that he saw her citizenship card in her drawer when he and his family returned to their home after N.M. had left home. As L.M. pointed out during his testimony at trial, he and his family were out when N.M. left home and so N.M. could have retrieved her papers and taken them with her. This which makes sense. In consequence, I do not accept N.M.'s evidence that her papers were taken away from her or that she could not retrieve them when she left home.

[31]

The trial judge had the advantage of seeing the witnesses testify. Her assessment attenuates concerns that might otherwise deter an appellate court from intervening in a case like this. She rejected the complainant's evidence that the appellant had intercourse with her while his two year old child lay on the bed beside her as improbable and rejected the evidence that intercourse could have occurred, undetected in such small quarters occupied by four others in addition to the complainant and the appellant.

[32]

As in R. v. M.(N.), had the jury been instructed on the potential significance of N.M.'s lies – that a deliberate lie on an important matter would be very significant in their assessment of whether guilt beyond a reasonable doubt had been proven on the basis of a complainant's evidence – an appellate court might have greater confidence in the verdict.

[33]

Further, the allegations described by the complainant were improbable in a number of respects. The appellant's work and school hours, and the complainant's school hours make it difficult to see how the assaults could have occurred as described. The appellant's evidence about his absences from the home was unchallenged, however the solidity of this evidence was urged upon the jury by the trial Crown as a factor supportive of guilt: "His daily routine around the time of the offences, had him out of the house most of the day. Is this true, or is this a convenient thing, so, so as to afford him little opportunity to commit the offences?"

[34]

In this case, the risk of a wrongful conviction is too high; a jury acting reasonably could not be satisfied beyond a reasonable doubt that the accused was guilty. The verdict of guilt is set aside and an acquittal entered.

Released: January 17, 2017

Robert J. Sharpe J.A.

K. van Rensburg J.A.

G. Pardu J.A.

Footnote

[1] In addition to the sexual assault conviction, the jury found the appellant guilty of the lesser offence of sexual touching. The conviction of sexual touching was stayed pursuant to R. v. Kienapple, [1974] S.C.J. No. 76, because it arose out of the same factual circumstances and depend on the same evidence given by N.M. as the sexual assault conviction.