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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-02-14

Docket: C64308

Judges: Feldman, Lauwers and Nordheimer JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

Denzel Palmer-Coke

Appellant

Counsel

For the Appellant: Faisal Mirza

For the Respondent: Candice Suter

Hearing and Decision

Heard: January 30, 2019

On appeal from: The convictions entered on July 25, 2017 by Justice Susan G. Himel of the Superior Court of Justice, with reasons reported at 2017 ONSC 4501.

Reasons for Decision by: Nordheimer J.A.

Decision

Introduction

[1] The appellant appeals from his convictions, after a judge alone trial, of one count of sexual assault causing bodily harm and one count of unlawful confinement.

[2] There does not appear to be any dispute regarding the basic facts that underlie the offences charged, although there is certainly a dispute as to what led up to the events and the context in which they occurred. There was a serious issue regarding the credibility of the complainant, especially regarding her memory of the events in question. However, as will become apparent, these issues became less serious in terms of the ultimate resolution of the charges because of various admissions made by the appellant.

Background

[3] The basic facts are as follows. On Saturday July 21, 2012, the complainant travelled from St. Catharines to Toronto to attend a bachelorette party with several girlfriends. They were staying overnight at a hotel in two adjoining rooms. The complainant was 24 years old. The group went to a nightclub/bar just before midnight. The complainant returned by herself to the hotel alone around 1:30 a.m. in a cab. There is no dispute that the complainant was intoxicated.

[4] The complainant got out of the cab and walked into the hotel alone. She did not recall talking to anyone. She said she went right to her room. She did not see anyone around her. However, video surveillance from the hotel showed her walking into the hotel, then touching the appellant, and walking into the elevator with him. They were holding each other.

[5] The complainant testified that she went to her room on the sixth floor. When she entered room 608 using her card key, she noticed that none of her friends were there. She checked the adjoining room 607. Then she turned around and saw a man standing at the door between the adjoining rooms. She was shocked and asked what he was doing there. She recalled him cursing her. There is no dispute that this male was the appellant.

[6] The complainant gave evidence that the appellant came further into the room and pushed her onto the bed closest to the window in the adjoining room. Then he straddled her with his knees on the edge of the bed. He ripped off her underwear, tried to pull the top of her dress down, and touched her near her vagina. She said she does not recall what he said but she screamed, fought back, and tried to push him off. As a result, he punched her in the face, injuring her eye and facial area. She then kicked him and managed to briefly break free. The appellant then pulled her back by the hair and punched her in the face, causing her to fall to the ground and hit her head. Once she got up, he came around in front of her and punched her again in the face. She fought him off by kicking again and, this time, was able to run out of the room into the hallway. Once in the hallway, she ran into another guest of the hotel and collapsed into his arms.

[7] According to a friend, the complainant called the telephone of the friend's boyfriend at approximately 1:30 a.m. The friend answered. The complainant said she was at the hotel. The friend knew that the complainant was in Toronto at a bachelorette party but did not know the details. The friend said she could hear the complainant speaking to someone and say, "you should leave now" and the male person said, "Why are you being so rude?" She heard the complainant say "you can take the bottle". She then heard a scuffle and the complainant say "What the fuck?" three times and the telephone went dead.

[8] Another hotel guest had heard a commotion coming from the complainant's room. She alerted hotel security who in turn alerted the police. The police arrived thereafter and commenced their investigation.

[9] The appellant elected to give evidence at the trial. He has no criminal record and resides with his mother. The appellant was 19 years old at the time. The appellant was staying at the hotel while he attended a friend's birthday party.

[10] The appellant said he entered the hotel and was walking into the lobby when a "girl" bumped into him. There is no dispute that this "girl" is the complainant. He asked if she was all right and she said yes. Then he said she gave him her hotel key and had her arm wrapped around his arm. He walked her to the elevator and they were talking as they walked hand in hand. It was 1:29 a.m. She pushed the elevator button and they entered the elevator. They got off the elevator and he walked her to her room. He passed her the hotel key and she opened the door and said, "have a good night." Then she said, "No, come in" and he said "o.k."

[11] The appellant testified that he walked into the room and she walked over to him. He said that she sat on the bed and motioned to him to come over and sit down. He walked over and sat beside her. Kissing and fondling ensued. The complainant raised her hips and her dress. The appellant said he was by her vagina with her dress raised when he tore her underwear. He said it was hard to do. When asked why he did so, he said "I thought that's how people had sex. I saw it in a dirty movie. I never had sex before. I was a virgin and I didn't know anything."

[12] Immediately after this, the complainant started moving away from him and towards the headboard. She said, "who are you?" and "I don't know you." The appellant says he was shaken and jumped back. He said that he tried to talk to her to calm her down, but she got off the bed and crouched between the two beds. The appellant said he was standing by the edge of the bed and was trying to talk to her. He said he did not know what she was doing but that she was on the phone. The appellant said, "please calm down". Then he walked over to her to get the telephone and she started hitting him with open hands and kicking him. He said that he tried to get her to stop and to talk to him. She screamed and continued to hit and kick him. The appellant then punched the complainant twice and she fell back. The appellant said he started walking toward the door of the room when the complainant ran past him and out the door. The appellant then left the hotel. He was contacted by police a few days later and was eventually arrested and charged.

Analysis

[13] Against that backdrop, I turn to the central issues raised on this appeal. While there were 11 grounds of appeal set out in the Notice of Appeal, at the hearing counsel distilled those grounds down to the following four:

1. The trial judge erred in admitting certain expert evidence from the toxicologist.
2. The trial judge erred in admitting hearsay evidence arising from the telephone call between the complainant and her friend.
3. The trial judge erred in finding that the appellant had fabricated his evidence.
4. The trial judge erred in convicting the appellant of unlawful confinement.

[14] I will deal with each of them in turn.

(1) The Toxicologist's Evidence

[15] The Crown called Robert Langille from the Centre of Forensic Sciences to give evidence regarding the level of intoxication of the complainant at the time of the events. The appellant complains with respect to two aspects of Mr. Langille's evidence. One involves Mr. Langille's commentary on the movement of the complainant as seen on the hotel security video in terms of evidencing her intoxication. The other is Mr. Langille's evidence that "significant stresses produce adrenalin in the body and adrenalin increases your level of alertness and awareness for a short period of time". This evidence was directed at explaining why the complainant, while admittedly intoxicated and with limited memories of the events in question, might remember the specifics of the actual sexual assault.

[16] In my view, the appellant's complaints are well founded. On the first point, there was no need for the toxicologist's commentary on the security video. The trier of fact, in this case the trial judge, was entirely capable of reviewing the video and making her own determinations as to what the video showed regarding the complainant's movements as they related to her level of intoxication. The expert's evidence was not necessary for that purpose and therefore did not meet the second criterion for the admission of expert evidence set out in R. v. Mohan, [1994] 2 S.C.R. 9, at p. 20.

[17] On the second point, there was no direct evidence that Mr. Langille had expertise in the area of memory. Indeed, the word "memory" does not appear anywhere in his curriculum vitae nor does it appear to be encapsulated in any of the courses, seminars, and other experience therein referenced. Further, it is not clear that Crown counsel sought to have Mr. Langille so qualified. In seeking to qualify him, Crown counsel said:

Your Honour with respect to Dr. Langille, I'd like him to be qualified as an expert in the detection, pharmacology and toxicology of drugs, alcohol and poisons and the physiological and behavioural effects of alcohol and drugs on the human body.

[18] I understand that Mr. Langille did give some evidence regarding memory during the voir dire on his qualifications. Crown counsel failed, however, to identify that as one of the areas that she was seeking to qualify him as an expert. Further the trial judge did not expressly qualify Mr. Langille in this area. Rather, in ruling on his qualifications, the trial judge said:

… I am satisfied that he is an expert in the detection, pharmacology and toxicology of drugs, alcohol and poisons, and in the physiological and behavioural effects of alcohol and drugs on the human body and that he may give opinion evidence in this regard.

[19] I would reject any suggestion that memory, and impacts on memory, are embraced within the reference to "physiological and behavioural effects of alcohol and drugs on the human body". Memory is a distinct subject that is usually dealt with by neurologists, psychiatrists, or psychologists. Mr. Langille is none of those.

[20] In any event, I cannot determine, on the record before us, whether Mr. Langille might have been properly qualified as an expert in memory nor is it necessary that I be able to do so. It is sufficient for me to say that Mr. Langille was not properly qualified as an expert in memory based on the record that was before the trial judge. The trial judge ought not to have permitted Mr. Langille to give the evidence that he did regarding memory and the effects that stress and adrenalin might have in terms of heightening memory.

[21] I am aware that trial counsel did not maintain a specific objection to this evidence although she referenced it initially. That does not change the fact that the trial judge as gatekeeper had an independent obligation to ensure that the expert, in giving his evidence, stayed within his established area of expertise: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330.

[22] Notwithstanding that conclusion, however, this improperly admitted evidence did not weigh heavily on the ultimate conclusion regarding guilt, as I shall come to explain. It does not therefore undermine the trial judge's conclusion that a conviction was borne out on the evidence as a whole.

(2) The Hearsay Issue

[23] The appellant complains that the trial judge erred in admitting and relying on for its truth the statement that the complainant's friend heard during the telephone conversation (to which I referred in para. 7 above), that the complainant asked the appellant to leave. I do not accept that the trial judge erred in this respect because I do not accept the fundamental point made by the appellant that this evidence was inadmissible hearsay. The friend was not repeating a fact that she was told by someone else. Rather, the friend was saying what she herself heard the complainant say. It was admitted to prove what the complainant said to the person she was talking to but not any fact contained in that statement. That is not hearsay.

[24] The evidence was admissible as fact evidence. It was up to the trier of fact to weigh its probative value in conjunction with all of the other evidence, which the trial judge did. There is, however, no merit to the submission that the evidence ought not to have been admitted because it was hearsay that required the holding of a voir dire to determine whether it could be admitted under the principled exception to the hearsay rule.

(3) Fabrication by the Appellant

[25] The submission on this point is included within a broader assertion that the trial judge applied unequal levels of scrutiny to the evidence led by the Crown as compared to the evidence of the appellant. It is also admitted that there is no express finding of fabrication made by the trial judge.

[26] In my view, the latter admission is sufficient by itself to dispose of this ground of appeal. There is simply nothing in the trial judge's reasons to suggest that she viewed the appellant as having fabricated his evidence or that she rejected his evidence on that basis. Rather, the trial judge pointed out, as she was entitled to do, that the appellant had given dramatically different versions of the events to the police than he gave when he was a witness at trial. That is not a finding equivalent to fabrication and ought not to be treated as such.

[27] I would also reject the suggestion that the trial judge applied an unequal approach to the evidence. Nothing in the record establishes that suggestion which, as this court has noted in the past, is an extremely difficult position to make out: R. v. Howe, 192 C.C.C. (3d) 480, at para. 59.

(4) Unlawful Confinement

[28] The appellant submits that the conviction for unlawful confinement was improper in the circumstances of this case. I agree. The trial judge dealt with this issue in one sentence at the end of her reasons. She said:

He prevented her from leaving the room, grabbed her by the hair, pulled her back, striking her head, and made efforts to restrict her liberty.

[29] The constituent elements of the offence of unlawful confinement are set out in R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, where Binnie J. said, at para. 24:

The authorities establish that if for any significant period of time [the victim] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement within s. 279(2) [citations omitted].

[30] The distinguishing element of a significant period of time was also addressed in R. v. Rocheleau, 2013 ONCA 679, 311 O.A.C. 295, where Tulloch J.A. noted in discussing this issue at para. 29:

On the facts as admitted in this case, there was domination and a coercive restraint of the victims of sufficient length to attract liability for confinement discrete from the liability for robbery. Nor, in my view, could the additional impact on the individual's freedom of movement and bodily integrity be seen as simply incidental to the robbery.

[31] The opposite is true in this case, in my view. Here, the element of restraint that resulted from the appellant grabbing the complainant by her hair was momentary in nature. It was not for "any significant period of time" nor does the trial judge make any such finding. The conviction for unlawful confinement, therefore, cannot stand.

[32] I would also note that, even if one could make out, on the facts of this case, that the restraint did involve a significant period of time, a conviction for unlawful confinement was not properly entered based on the principles set out in R. v. Kienapple, [1975] 1 S.C.R. 729. On that point, the circumstances of this case appear to be indistinguishable from those in R. v. Alli where this court said:

We are, however, of the opinion that any confinement of the complainant formed an integral part of the convictions for sexual assault or assault simpliciter. By virtue of the principle enunciated in R. v. Kienapple, [1975] 1 S.C.R. 729, the conviction on the charge of unlawful confinement cannot stand. (See R. v. D. (S.), 10 O.R. (3d) 402).

[33] In the same way in this case, the appellant's grabbing of the complainant's hair was clearly an integral part of the continuing sexual assault. There would thus be a sufficient factual nexus and a sufficient legal nexus between the offences to trigger the application of the Kienapple principle: R. v. Prince, [1986] 2 S.C.R. 480.

[34] In the end result, I conclude that the trial judge erred in finding the appellant guilty of unlawful confinement in these circumstances. That conclusion does not affect the sentence imposed, however, since the 12 month sentence on the unlawful confinement conviction was made concurrent to the 15 month sentence on the sexual assault causing bodily harm conviction.

(5) Summary

[35] The conclusions on the first three grounds of appeal do not provide a basis to interfere with the conviction for sexual assault causing bodily harm. The conviction for unlawful confinement is a separate matter.

[36] The evidence as a whole clearly establishes a basis for the conviction for sexual assault causing bodily harm. The appellant admits that he struck the complainant. The appellant admits that he tore her panties off as part of an intention to engage in sexual activity. The connection between the two events is sufficient to establish that the assault arose in a sexual context. The trial judge rejected the appellant's explanation that the sexual component of the events was consensual. In light of the trial judge's factual findings, a conviction for sexual assault causing bodily harm properly followed.

Conclusion

[37] The appeal with respect to the conviction for sexual assault causing bodily harm is dismissed. The appeal with respect to the conviction for unlawful confinement is allowed, the conviction is set aside, and an acquittal is entered.

Released: February 14, 2019

"K.F."

"I.V.B. Nordheimer J.A."

"I agree. K. Feldman J.A."

"I agree. P. Lauwers J.A."