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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-11-01

Docket: C65936

Panel: MacPherson, Pepall and Lauwers JJ.A.

Between:

Her Majesty the Queen Respondent

and

Maikel Ali Mirzadegan Appellant

Counsel:

• Matthew R. Gourlay, for the appellant
• Roger A. Pinnock, for the respondent

Heard: October 22, 2019

On appeal from: The conviction entered on June 7, 2018 by Justice K.L. Campbell of the Superior Court of Justice, with reasons reported at 2018 ONSC 3449.

Reasons for Decision

Introduction

[1] The appellant was convicted of one count of sexual assault following a six-day trial before Justice K.L. Campbell of the Superior Court of Justice. He received a custodial sentence of two years less a day. He appeals the conviction on two grounds: (1) the trial judge improperly relied on the complainant's supposed absence of motive to lie in support of her credibility; and (2) the trial judge impermissibly allowed a theory highly speculative and prejudicial to the appellant – that the complainant had been drugged with a "date-rape" drug, possibly by the appellant – into the trial.

Facts

[2] On the night of October 28-29, 2016, the complainant and her friend, C.M., both university students, dressed up in costumes to attend a Halloween-themed party at a fraternity house on campus. They had a couple of drinks in C.M.'s residence room before heading out to the fraternity house.

[3] The appellant, also a university student, was the doorman at the fraternity house that night. He and the complainant had never met. The appellant did not permit the complainant and C.M. to enter the house. Instead, they stayed outside, talking to the appellant. The complainant and C.M. offered him drinks from one of the bottles they had prepared before they went to the party and the appellant took a few sips. Eventually, the appellant's friend, another male student, joined the group. The complainant and C.M. drank a substantial amount from the two bottles they had brought with them. The drinking and conversation outside the fraternity house lasted about two hours.

[4] Both the complainant and C.M. became very intoxicated. The complainant testified that she experienced worsening symptoms of nausea, vomiting, light-headedness and dizziness as the night progressed.

[5] The four students decided to go back to C.M.'s residence. After a few minutes there, the complainant's symptoms worsened and she decided to return to her own residence. The appellant accompanied her. They arrived at approximately 3:11 a.m.

[6] The complainant testified that by the time she arrived at her residence she was feeling quite sick. On the walk back, she was nauseous, unsteady on her feet, and her vision was a little blurry. She felt like she was blacking out. Upon arrival, she went immediately to the washroom and vomited. When she came back to her room, she lay face down on her bed, still wearing her Halloween costume. The complainant's symptoms continued to worsen and, at some point, she lost consciousness.

[7] The complainant testified that as she regained consciousness, she became aware of a tearing sound and felt cold air on her buttocks. The appellant had ripped open both her body suit and her tights and had penetrated her from behind. She did not consent to this act of intercourse, but was not able to prevent it.

[8] The appellant's account of what happened in the complainant's residence room was very different. He testified that on arrival they started "making out almost right away". After a few minutes, the complainant asked him to unzip her outfit, which he did, and then she went to the washroom. He testified that he perceived no reason to be concerned about her wellbeing. When the complainant returned after a few minutes, she went to lie down on the bed. He asked if he should turn out the lights and get in bed with her and she said yes. They spent a few minutes "making out" and fondling each other and then she signalled for him to take off her outfit. The appellant explained that the outfit was really tight to her body. In the "heat of the moment", he decided to rip it open and he had intercourse with the complainant from behind. Throughout the time he was in the complainant's room (about 39 minutes, according to the residence surveillance camera), the appellant said that he perceived the complainant to be a little bit intoxicated, but not to the point where she was not able to talk, walk and make decisions. There was nothing out of the ordinary about her level of intoxication, as he perceived it.

Analysis

(1) The Complainant's Absence of Motive to Lie Issue

[9] The appellant's first, and principal, ground of appeal is that the trial judge improperly relied on the complainant's supposed absence of motive to lie to support her credibility. The appellant challenges the following portion of the trial judge's reasons:

[102] Another factor that, in my view, supports the credibility of the complainant is that the complainant has no apparent motive to invent a false allegation of sexual assault against the accused. I appreciate that the accused has no onus to prove that the complainant has a motive to lie. I also appreciate that the absence of any apparent motive to fabricate does not necessarily mean that a complainant does not, in fact, have some hidden motive to fabricate her allegations and, therefore, must be telling the truth. See R. v. L.L., 2009 ONCA 413, 244 C.C.C. (3d) 149, at paras. 32-54; R. v. B.(R.W.) (1993), 24 B.C.A.C. 1, [1993] B.C.J. No. 758 (C.A.), at para. 28.

[103] In the present case, however, there is not the slightest suggestion of any potential motive to lie on the part of the complainant. Prior to the night in question, the complainant and the accused were total strangers to each other. They had no prior relationship or history together that might potentially have created some animus on the part of the complainant against the accused. Further, there is no other evidence from which it might reasonably be suggested, or concluded, that there might be some other potential motive for the complainant to invent a false allegation of sexual assault against the accused.

[104] Defence counsel argued that there were a "plethora" of reasons why the complainant might have fabricated her evidence, and he speculated that, perhaps, she felt "used and cheap after the fact." I disagree. I must say that, having carefully watched the complainant as she testified in this case, I did not perceive her evidence to be at all motivated by any malice against the accused, or by any regret over a hasty and less than romantic sexual misadventure. Rather, she struck me as a young woman who was in court to truthfully explain how she had been raped by an opportunistic near-stranger who had taken advantage of her while she was in a near-unconscious state.

[105] In any event, the absence of any apparent motive to lie is simply one factor that may appropriately be considered in assessing the credibility of any witness. See R. v. M.(O.), 2014 ONCA 503, 313 C.C.C. (3d) 5, at paras. 104-110; R. v. LeBrocq, 2011 ONCA 405, 87 C.R. (6th) 85, at paras. 18-21; R. v. D.C., 2017 ONCA 483, [2017] O.J. No. 3138, at para. 8; R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 89-98. As Doherty J.A. stated, in delivering the judgment of the Court of Appeal for Ontario in R. v. Batte (2000), 49 O.R. (3d) 321, 145 C.C.C. (3d) 449, at para. 121:

What must be avoided … is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive, or finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility. [emphasis added]

[106] In summary, I believe and accept the testimony of the complainant. She was an honest, forthright and truthful witness. She candidly explained the important details of the events of the night of October 28-29, 2016, to the best of her ability given her level of intoxication that night, and the other physical symptoms she experienced that night from the combination of alcohol and drugs. Her degree of intoxication, as well as her other physical symptoms, were confirmed by the testimony of other witnesses in the case. Her ripped Halloween costume also confirms the truthfulness of her evidence as to how the act of sexual intercourse took place. Further, the complainant has no apparent motive to falsely implicate the accused in an offence of sexual assault. In short, I found her testimony compelling.

[10] The appellant submits that this analysis is prohibited by this court's recent decision in R. v. Bartholomew, 2019 ONCA 377, which was released 11 months after the trial judge's decision in this case.

[11] For several reasons, we do not accept this submission.

[12] First, counsel for both the appellant and the respondent agree that Bartholomew does not change the law from the leading "absence of motive to lie" cases, namely, R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.) and R. v. L.(L.), 2009 ONCA 413. This concession is important because, although the trial judge did not have the benefit of Bartholomew, in his analysis (set out above) he assiduously cited and purported to apply Batte and L.(L.).

[13] Second, there are factual differences between Bartholomew and this appeal. In Bartholomew, the complainant and the accused knew each other and testified about the nature of their relationship. In the present appeal, the parties were strangers until the night in question. As the trial judge found, they had no prior relationship, nor was there any evidence to reasonably suggest that the complainant might have had a potential motive to fabricate the allegations.

[14] Third, and crucially, there is an important distinction between the respective trial judges' treatment of the absence of motive to lie in Bartholomew and in this case. In Bartholomew, the trial judge erred by transforming "the absence of evidence of a motive to fabricate into a proven lack of motive" and then using this finding to "enhance the credibility of the complainant"; at paras. 19 and 28. In the present appeal, the trial judge stated at the outset that there was no apparent motive to fabricate. His finding was more tentative than that of the trial judge in Bartholomew. Moreover, his reasons make it clear that he did not make the impermissible leap between finding an absence of apparent motive and concluding the complainant must be telling the truth. Unlike the trial judge in Bartholomew, he did not use this finding to "enhance" his assessment of the complainant's credibility. Although it supported his finding, the trial judge reasonably could have concluded that the complainant was credible on the first two factors alone – the corroborating testimony regarding her degree of intoxication and the ripped Halloween costume. This is particularly so given the trial judge's strong rejection of the appellant's testimony on these two issues:

[108] …I find that the accused was simply being untruthful. The complainant was not "okay" or "fine." Rather, she was severely intoxicated, repeatedly vomiting, and virtually incapable of consenting to sexual activity – and the accused knew it.

[110] I also find the key testimony of the accused, as to how the complainant's costume came to be torn just prior to the act of sexual intercourse, to be untruthful and manufactured.

[15] For these reasons, we do not give effect to this ground of appeal.

(2) The GHB Drug Issue

[16] The GHB ("date-rape" drug) issue arose at trial due to a misstep by defence counsel (not appellate counsel) which he later attempted, unsuccessfully, to correct. Defence counsel mistakenly thought that the reference to GHB in the toxicologist's opinion letter related to citalopram, an anti-depressant the complainant was taking at the time. He was not aware that GHB referred to the "date-rape" drug. Traces of citalopram were found in the complainant's urine sample when she underwent toxicological testing at a hospital the day after her encounter with the appellant. However, GHB testing was not performed because more than 12 hours had elapsed between the incident and the sample collection. The toxicologist's opinion letter was filed on consent as an exhibit. It noted that some symptoms associated with GHB consumption can include "sedation, loss of consciousness, amnesia, and nausea and vomiting." Under his mistaken belief that GHB referred to citalopram, defence counsel had seemingly wanted to establish that the complainant's symptoms stemmed from the effects of taking that medication (citalopram) and mixing it with alcohol and marijuana.

[17] Following the accused's cross-examination, on re-examination of the complainant the Crown explored the theory that the complainant could have ingested GHB. Subsequently, defence counsel attempted to remedy his error by suggesting that he could either ask the trial judge to disregard the toxicologist's opinion letter or call evidence in reply. Following an exchange with the trial judge, defence counsel suggested it remain as an exhibit and was perhaps a matter for submissions. The trial judge agreed with this course of action. The Crown then cross-examined the accused on the GHB theory. Defence counsel ultimately did not address the GHB issue in his closing submissions.

[18] The appellant submits that the trial judge erred by permitting the GHB issue to distract attention from the crucial issue at trial – what happened in the complainant's residence room when she and the appellant returned there together.

[19] We are not persuaded by this submission. In his reasons for judgment, the trial judge said: "I need not draw any final conclusion as to whether the accused (or anyone else), in fact, surreptitiously drugged the complainant's bottle with GHB." In our view, this conclusion was apt. The mechanics of how the complainant became incapacitated and unable to consent to sexual activity were not central to the disposition of the case. Whether she became incapacitated by alcohol, marijuana, a prescription drug, or some other drug, like GHB, was not central to the finding of guilt. That finding was squarely based on the trial judge's acceptance, beyond a reasonable doubt, that the complainant had been sexually assaulted by an opportunistic near-stranger who took advantage of her while she was in a near-unconscious state.

[20] Moreover, as mentioned, defence counsel chose not to address the GHB issue in closing submissions. This undermines the argument on appeal that trial fairness had been compromised.

Disposition

[21] The appeal is dismissed.

"J.C. MacPherson J.A."

"S.E. Pepall J.A."

"P. Lauwers J.A."