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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 2019-05-22

Docket: C64428

Judges: Hourigan, Paciocco and Harvison Young JJ.A.

Between

Her Majesty the Queen

Respondent

and

R.M.

Appellant

Counsel: Michael Lacy, for the appellant Jeremy Tatum, for the respondent

Heard: May 8, 2019

On appeal from the convictions entered by Justice John P. Condon of the Ontario Court of Justice on November 17, 2016.

Reasons for Decision

Overview

[1] The appellant, R.M., was charged with ten offences arising from his domestic relationship with C.G. He was convicted of five of those offences, including: three charges of assault contrary to Criminal Code, R.S.C. 1985, c. C-46, s. 266, a charge of sexual assault contrary to Criminal Code, s. 271, and a charge of unlawful confinement contrary to Criminal Code, s. 279(2). He was acquitted of four of those offences, including: another charge of unlawful confinement for which no evidence was led, a charge of assault, a charge of assault with a weapon contrary to Criminal Code, s. 267(a), and a charge of aggravated assault contrary to Criminal Code, s. 268. The remaining charge of uttering a death threat contrary to Criminal Code, s. 264.1(1)(a) was withdrawn by the Crown with leave of the court.

[2] As a result of his convictions, R.M. was sentenced to 21 months in jail and placed on probation for three years.

[3] R.M. now appeals his convictions. He claims that the trial judge erred in rejecting his Charter, s. 11(b) motion and failing to stay the charges, and that he committed several legal errors related to credibility evaluation when finding R.M. guilty of the five offences.

[4] We do not accept R.M.'s grounds of conviction appeal, and dismiss his sentence appeal as abandoned.

The Trial Judge Was Correct in Rejecting the S. 11(b) Application

[5] In his s. 11(b) analysis, the trial judge proceeded on the basis that the total period of delay ended with his s. 11(b) decision. However, the parties have argued this appeal on the basis that the period of total delay should have ended with R.M.'s conviction. Absent the benefit of complete argument, this is not the case to tackle the controversial questions relating to the proper end point in calculating total delay. Nor would that determination affect the outcome of the instant appeal.

[6] If we proceed on the basis that the appeal was argued – that the total delay was 650 days, or 21 months and 11 days – the remaining delay is presumptively reasonable. We can explain this conclusion by examining only three of the periods of delay.

[7] R.M. takes issue with the trial judge's decision to deduct 71 days, or 2 months and 11 days, of delay on the basis that this delay arose from exceptional circumstances. Even if the trial judge was incorrect about this, he also found that R.M.'s counsel made "an explicit waiver of the adjournment time arising from the discrete event." This finding was not challenged by R.M. This waiver means that the entire period is defence delay that must be deducted from the total delay. This brings the remaining delay down to 579 days, or 19 months and 9 days.[1]

[8] The trial judge also attributed significant delay to R.M. for inaction in arranging a pretrial. In this appeal, R.M. contends that much of this delay should not have been laid at his feet, but concedes that 35 days of that delay is properly attributable to the defence. This was a proper concession. This 35 day delay was caused by R.M.'s counsel being double booked for a pretrial and then seeking an adjournment to permit R.M. to obtain legal aid. Without resolving the controversy concerning the remaining portion of delay, this concession brings the remaining delay down to 544 days, or 18 months and 4 days.

[9] Among the other periods of delay deducted, the trial judge found that 14 days of defence delay was caused when an adjournment was required because R.M. needed time to consider his election on mode of trial. R.M. does not contest this conclusion. This brings the remaining period of delay under 18 months, making the delay presumptively reasonable.

[10] R.M. does not urge that in this case the presumptively reasonable delay should be found to be unreasonable. On this basis alone, R.M.'s s. 11(b) appeal would fail, without having to consider the other periods of delay that are in dispute between the parties.

[11] In any event, regardless of how the total delay is calculated – whether until the end of the verdict or until the end of the s. 11(b) decision, or even until R.M. was sentenced just a month or so after the s. 11(b) decision – the remaining delay would not be unreasonable in this transitional case. The trial judge made factual determinations that have not been effectively challenged and that make this outcome inevitable.

[12] Specifically, the trial judge found that by the time R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 was decided, all of the evidence in the case had been heard. The next appearance date for reply evidence and submissions was already set and there was no opportunity for the Crown to remedy that delay.

[13] He also found that the parties relied on the law as it existed prior to Jordan and that the defence never demonstrated concern about the delay that was occurring. This was a decision that was open to the trial judge to make on the facts of this case, given the various adjournment requests made, the defence inaction in setting the pretrial, and the failure of R.M. to be ready to elect mode of trial. R.M.'s counsel's sole relevant comment when setting trial dates, that he had "many many early dates", is not enough to undercut the trial judge's finding.

[14] Against this backdrop, the trial judge appropriately invoked the transitional exception in a serious case where he found, as he was entitled to, that no meaningful case specific prejudice had been demonstrated.

[15] That same conclusion applies in this case, however total delay is calculated. The s. 11(b) appeal is therefore denied.

There Are No Errors in the Substantive Judgement

[16] In his factum, R.M. raised three grounds of appeal relating to the trial judge's decision to find him guilty of the five charges: (1) the trial judge erred by using the complainant's admission of lying to bolster her credibility, (2) the trial judge erred by failing to explain why adverse credibility findings he made against the complainant on some of the counts did not undermine her credibility on the balance of the counts, and (3) the trial judge applied stricter scrutiny to R.M.'s evidence than the complainant's evidence, undermining the fairness and appearance of fairness of the trial. These arguments were each presented in oral argument, although structured differently. Mindful of the overlap between them, we will address the arguments in the order just identified.

A. The Trial Judge Did Not Use the Complainant's Lie to Bolster Her Credibility

[17] In our view, the trial judge did not use the complainant's admission that she lied about the aggravated assault incident to bolster her credibility. Instead, he used her readiness to admit having lied as an illustration of his conclusion that she was responsive to questions. Specifically, he said in the impugned passage that "[s]he was responsive to the questions put to her, even agreeing that she had lied to some people about events that had occurred".

[18] Indeed, rather than using the complainant's admission to having lied to bolster her credibility, the trial judge found that the inconsistency between her statements and her testimony contributed to the reasonable doubt he had on the aggravated assault charge.

[19] R.M. argues in the alternative that this latter finding is inconsistent with the former. Specifically, R.M. contends that when the trial judge found the complainant's admissions that she lied to be responsive, he must implicitly have accepted that she actually was lying when making those prior statements. In other words, he must have accepted that her earlier claims that R.M. had not caused her injury were in fact false. Yet, the trial judge then relied on the inconsistency between those innocent accounts and her incriminating testimony as a reason for reasonably doubting her incriminating testimony. The two findings cannot co-exist, logically.

[20] We do not agree. Recognizing an answer to be responsive does not require acceptance that the responsive answer is true. And that is all that the trial judge used her admission to lying to demonstrate - responsiveness. We cannot infer that the trial judge committed the error in logic that R.M. alleges.

[21] In any event, even if the trial judge had accepted the complainant's evidence that she was lying when she provided the innocent accounts, and avoided the logical error R.M. now raises, it would have worked against R.M.'s case. Consistent use of a finding that the complainant was lying when making the prior inconsistent statements would neutralize those prior inconsistent statements, thereby strengthening the Crown case.

[22] It follows in our view that even had the trial judge reasoned as R.M. alleges, the logical error would not be a material legal error undercutting the trial judge's findings, nor would it be the basis for a finding that a miscarriage of justice has occurred.

[23] We dismiss this ground of appeal.

B. The Trial Judge Did Not Err by Failing to Explain Why His Credibility Concerns on Some Counts Did Not Undercut His Findings on Other Counts

[24] R.M. argues that the trial judge's decision to acquit R.M. of several of the charges reflects concerns he had about the complainant's credibility. R.M. says that the trial judge erred by not considering these problems with the complainant's evidence in convicting R.M. of the other charges, and in not explaining why these concerns did not raise a reasonable doubt on the other charges.

[25] In our view, this argument would have more currency if the trial judge had affirmatively found that the complainant was lying in her evidence at trial about any one of the charges. He did not go that far. He went no farther than to identify credibility concerns that contributed to the reasonable doubt he had on some of the allegations. This is not a case where the trial judge chose to believe a demonstrated liar on some counts, without explanation.

[26] Of course, we do agree that it would have been better had the trial judge been explicit about why the credibility concerns he had about some of the complainant's testimony did not undercut the testimony she gave that he did accept. It is nonetheless apparent from the trial judge's decision as a whole that he did not silo his credibility findings from count to count. He opened his judgment with general assessments of the credibility of R.M. and the complainant. For each of the counts on which he convicted R.M., he gave context specific reasons for crediting the complainant, in addition to observations he made about the manner in which she testified, the detail she offered on central and incidental details, and the fact that she avoided difficulty in cross-examination.

[27] On two of the assault convictions, the trial judge found that photos of injuries confirmed her accounts.

[28] On the conviction for unlawful confinement, the trial judge found that the strikingly similar and overlapping details between the complainant's narrative and the testimony of R.M., relating to an incident with a vacuum chord and a wicker or willow chair, supported her evidence that this actually happened, a point we address in more detail below.

[29] On the findings of guilt involving an assault by slap and then a sexual assault, the trial judge found the complainant's evidence to be particularly credible because of her candid admissions. She testified that she agreed with R.M. the unwanted anal sex was "good for her", and that despite her lack of consent she let him proceed. As it happens, actual consent or mistaken belief in consent did not become issues in the case because the only defence raised was denial so these admissions by her did not ultimately weaken the Crown case. However the trial judge was impressed by, among other things, the candour of her account, as he was entitled to be.

[30] Ultimately, it was open to the trial judge to believe only some of the complainant's evidence. In doing so, he explained why. We would reject this ground of appeal.

C. The Trial Judge Did Not Use Uneven Scrutiny in Evaluating the Evidence of R.M. and the Complainant

[31] R.M. seeks to make out this notoriously difficult ground of appeal by challenging several of the trial judge's damaging factual findings. He urges that the trial judge made a series of discrete reasoning errors in salvaging the complainant's evidence – including some of the findings we have just described. He says that when the two approaches are contrasted, uneven scrutiny becomes clear.

[32] We disagree. We begin with the most obvious observation. The trial judge approached the evidence of both witnesses critically. He rejected some of the testimony of each of them, and acted on other evidence each gave. This alone does not undercut this ground of appeal, but it does place it on a less stable foundation.

[33] More importantly, in our view the trial judge was quite entitled, on the evidence before him, to: (1) make the inferences he did in rejecting R.M.'s story about the vacuum chord incident; (2) find inconsistency in R.M.'s evidence about his physical capabilities, and (3) accept that the photos depicted the alleged injuries. These findings were derived from reasonable inferences that logically arose from the evidence in the case and do not demonstrate a pattern of easy rejection of R.M.'s case.

[34] We do agree that the trial judge should not have relied upon R.M.'s testimony about the complainant's request for anal sex on another occasion, and about her urinary incontinence, as illustrations of R.M. discrediting himself by taking advantage of opportunities to make "extraneous" negative or embarrassing comments about the complainant. His testimony about the anal sex and the urinary incontinence was prompted by direct (if not perplexing and even inadmissible) questioning by defence counsel. It is therefore unfair to blame R.M. for the answers he gave, or to call his answers "extraneous". Nonetheless, in our view these improper illustrations are harmless, because the underlying conclusion is unassailable. A review of R.M.'s evidence shows that he was indeed anxious to place the complainant in a negative light. The animus he showed did discredit him. Ultimately, the fact that the trial judge took the wrong path to a correct conclusion does not illustrate the intense and inappropriate scrutiny of his evidence that R.M. alleges.

[35] Nor did the trial judge make the errors alleged in crediting the complainant. He did rely on her demeanour in giving evidence, but as already indicated, there were case specific reasons for accepting her evidence on the charges that resulted in findings of guilt.

[36] Nor is there any evident inconsistency in the complainant's account of how she came to be tied up. The trial judge was entitled to proceed on the footing that she was grabbed while standing, but then tied up while sitting.

[37] The trial judge should not have used the term "corroborated" in finding support in the strikingly similar details between the complainant's incriminating account and R.M.'s exculpatory version of the unlawful confinement allegation. However, the trial judge was entitled to note that those overlapping peculiar features, which would not likely have been remembered by R.M. had the incident been as innocent as he claimed, provided support for the complainant's version. She described a peculiar method of confinement in a woven wooden chair with a vacuum chord. So too did R.M. His evidence confirmed her testimony about his access to the tools she said he used in confining her. As well, when R.M. testified that he only threatened to restrain the complainant with a vacuum chord on the woven wooden chair, his argument about the implausibility of actually confining her in this way was compromised.

[38] Finally, we do not agree that the trial judge erred by enhancing the complainant's credibility because she admitted "difficult facts". This case is not like R. v. Kiss, 2018 ONCA 184, at para. 107.

[39] There, the complainant admitted to factual circumstances that supported the accused's innocent narrative of events, but were inconsistent with her incriminating version. The error the trial judge made in Kiss was to credit the complainant with candour in making such admissions, but then disregard the fact that her admissions damaged her version of events.

[40] Here, the "difficult facts" the complainant admitted are entirely consistent with the complainant's narrative of being anally penetrated after saying no, but then participating in order to avoid further assault or injury and not confronting R.M. with the fact that she had not consented. While her co-operation with the anal sex and her agreement that it was "good for her" may have challenged the Crown in overcoming a defence claim of consent, or a defence of belief in consent had one been raised, the defence here was denial. The admitted facts were not "difficult facts", because they did not weigh either against the Crown's case, or in favour of R.M.'s case. There was no misuse of those facts by the trial judge.

[41] Nor is there anything to the argument that the trial judge used R.M.'s "difficult" admission – that he had threatened the complainant with a vacuum chord and a woven wooden chair – to reject his account and support conviction, while using the complainant's "difficult" admissions to accept her account and support conviction. As indicated, her admissions were not "difficult", but consistent with her allegation. R.M.'s admission was not "difficult" either. He told an exculpatory story about the vacuum chord and the chair, not as an admission, but in a failed effort to tell the "real story" to cast doubt on her incriminating version.

[42] In our view, the trial judge's reasoning does not show uneven scrutiny.

Conclusion

[43] For the reasons provided, we dismiss the conviction appeal and dismiss the sentence appeal as abandoned.

C.W. Hourigan J.A. David M. Paciocco J.A. Harvison Young J.A.

Footnote

[1] To assist in converting days into months, the trial judge assumed that a month has 30 days. Obviously, this method lacks precision. This court has yet to settle the proper mechanism for converting days into months in an s. 11(b) case, and we do not purport to do so here without the benefit of argument. Since no issue was taken before us with the trial judge's method of converting accumulated days into months, we will adopt it here and assume for the purpose of this decision that a month has 30 days.