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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2019-11-26

Docket: C65792

Panel: van Rensburg, Hourigan and Thorburn JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Goran Vlaski Appellant

Counsel

David Humphrey and Jill Makepeace, for the appellant

Caitlin Sharawy, for the respondent

Hearing

Heard: November 7, 2019

On appeal from: the conviction entered on January 22, 2018, by Justice David Corbett of the Superior Court of Justice.

Decision

Hourigan J.A.:

I. Introduction

[1] The background facts of this sexual assault case may be briefly stated. The appellant and the complainant met in a bar on January 31, 2016. After a short discussion, they took a taxi to the appellant's parents' apartment.

[2] Both parties had been drinking that evening. The appellant testified that the complainant was not intoxicated. The complainant testified that she was intoxicated but did not lack the capacity to consent to sexual activity.

[3] The complainant remembers that she and the appellant engaged in consensual kissing in a spare bedroom in the apartment. She was concerned that their activities were heading toward sex, so she told the appellant that she did not want to have sex. The next thing the complainant says she remembers was lying on her front while the appellant was having vaginal intercourse with her. The complainant says that she told him to stop and he did not. According to the complainant, the appellant then engaged in anal sex with her and refused to stop when she told him to do so.

[4] In contrast to the complainant's evidence, the appellant testified that he engaged in consensual vaginal intercourse with the complainant and he denied having anal intercourse with her. The appellant also said he wore a condom.

[5] The complainant left the apartment immediately after the incident. There is video footage of her riding in an elevator and leaving the building in her bare feet. She testified that she was distraught after the encounter, while the appellant's evidence was that she appeared to be happy immediately before leaving the apartment.

[6] The forensic evidence confirmed the presence of semen in the complainant's vagina. The analysis of two rectal swabs was inconclusive as to whether male DNA might be present.

[7] The appellant was convicted of one count of sexual assault. He appeals his conviction, asserting three grounds of appeal: (i) the trial judge's reasons are insufficient, in that they fail to address reliability concerns regarding the complainant's evidence; (ii) the trial judge improperly used the complainant's prior consistent statements to fortify her evidence; and (iii) the trial judge applied an uneven standard of scrutiny to the defence and Crown evidence.

[8] For the reasons that follow, I would not give effect to any of these grounds and would accordingly dismiss the appeal.

II. Analysis

(i) Sufficiency of Reasons

[9] The appellant concedes that this ground of appeal will only succeed if he can establish that the reasons are so deficient that meaningful appellate review is foreclosed: see R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639 at para. 10. Nevertheless, he submits that this standard has been met because the trial judge did not address two aspects of the complainant's evidence that warranted meaningful consideration.

[10] The appellant argues that the trial judge was obliged to explain why the complainant's numerous memory lapses in her testimony did not render her evidence unreliable. In his factum, the appellant cites several instances where the complainant was unable to recall details of events that occurred during the evening of the alleged assault. I would reject this ground of appeal for two reasons.

[11] First, the trial judge's reasons must be read in the context of the parties' positions at trial. Defence counsel did not argue that the complainant's evidence was unreliable. Instead, he submitted that the complainant had a selective memory. In other words, the argument was not that she was unreliable but that she was not credible. The trial judge's reasons were responsive to the defence's position and therefore focused on the complainant's credibility.

[12] Second, many of the memory lapses complained of relate to peripheral matters, such as the apartment's appearance and where exactly in the bar she met the appellant. The trial judge was not required to avert in his reasons to memory lapses on these peripheral matters.

[13] There were other memory lapses regarding precisely what transpired immediately before the vaginal intercourse began. Examples include details regarding which articles of the complainant's clothes were removed and how. The appellant also notes that the complainant does not remember what happened to her between her statement that she did not want to have sex and her memory of the appellant being on top of her.

[14] It is inaccurate to suggest that the trial judge did not consider these issues in his reasons. While he did not reference the memory lapses in detail, the trial judge recognized that the complainant's evidence was not clear about "how quickly things unfolded after she expressed her lack of consent." He therefore looked for and found confirmatory evidence to substantiate the complainant's version of events. The trial judge relied on the video footage from the elevator after the incident, which he found showed that the complainant was distraught.

[15] In my view, the trial judge's reasons were not deficient because of his failure to detail the reliability concerns raised by the appellant.

[16] The appellant further submits the trial judge's reasons were insufficient because they failed to determine whether the complainant's allegation of forced anal penetration occurred. The trial judge is said to have compounded this error by finding that there was "some kind…of anal manipulation, whether it was digital or with the accused's penis". The appellant argues that this was an unavailable compromise finding because the complainant did not raise the possibility of anal manipulation short of penetration in her testimony.

[17] I would not give effect to this submission.

[18] The trial judge recognized that he could not resolve the issue of anal penetration on the state of the forensic evidence. As he put it, the fact that semen was not found in the complainant's anus "does not mean there was not penetration". Based on the uncertainty in the evidence, he was not satisfied beyond a reasonable doubt that anal penetration took place.

[19] This was a single count case and the trial judge accepted the complainant's testimony regarding the non-consensual vaginal intercourse. Consequently, it was unnecessary for the Crown to prove the actus reus of sexual assault by means of forced anal penetration.

[20] Ultimately, the issue of whether anal penetration had occurred was relevant only to the complainant's credibility. In essence, the appellant's complaint appears to be that the trial judge refused to draw the inference urged by the appellant, that in the absence of conclusive forensic evidence of penetration, the complainant must have been lying about the anal intercourse. On the record, it was open to the trial judge to find the possibility of anal manipulation short of penetration. This was a plausible explanation where the complainant testified that there was contact with her anus, and there was no confirmatory forensic evidence of penetration. In any event, the inclusion of this finding in the trial judge's reasons does not assist the appellant on this ground of appeal, which alleges insufficient reasons.

[21] In summary, the trial judge's reasons were not deficient. They explained clearly and succinctly how he reached his finding of guilt. Appellate review is not foreclosed. This ground of appeal fails.

(ii) Prior Consistent Statements

[22] In support of his second ground of appeal, the appellant relies on a reference in the reasons to the complainant's disclosure of the alleged sexual assault to a friend and a co-worker as follows:

As I have indicated, the complainant reported the incident to her friend and then her co-worker the next morning. The co-worker persuaded the complainant to call the police.

The complainant's account of events to the friend and co-worker was consistent with her account to the court, and her demeanour with both was likewise consistent with her account.

As prior consistent statements, these statements are not admissible for the truth of their contents, that is, the statements to the friend and the co-worker. However, these immediate complaints do not serve to cast doubt on the complainant's evidence as to what happened.

[23] The appellant submits that although the trial judge explained that the statements were not admissible for the truth of their contents, the only reasonable inference is that he impermissibly used the complainant's prior consistent statements to fortify the complainant's evidence.

[24] There is no basis to support the inference that we are invited to draw. In considering this ground of appeal, it is essential to carefully consider the trial judge's comments and the context in which they were made.

[25] The reference to the prior consistent statements in the first paragraph of the quote is pure narrative. It explains how the complainant's case came to be reported to the police. As such, it is a recognized exception to the rule that prior consistent statements are presumptively inadmissible: R. v. Khan, 2017 ONCA 114, at para. 30, leave to appeal refused, [2017] S.C.C.A. No. 139.

[26] The appellant makes two arguments concerning the remaining paragraphs in the quote. First, he says that the trial judge speculated that the statements were consistent with the complainant's court testimony because the Crown did not adduce any evidence about what precisely was said to the friend and the co-worker.

[27] I do not read the trial judge's comments as meaning that the details of the statements were consistent. Instead, I read his comments as a limited observation that the complainant told her friend and her co-worker that she was sexually assaulted, and that she said the same thing in her testimony. To that extent only, the statements were consistent with her testimony.

[28] The next issue is whether the trial judge impermissibly used the prior consistent statements to bolster the complainant's credibility. I find that he did not.

[29] While a prior consistent statement cannot be used for the impermissible purpose of confirming the truthfulness of an allegation, it can be used "for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility" (italics in original): R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 37.

[30] This exception to the prior consistent statement rule is referred to as "narrative as circumstantial evidence." It recognizes that, in the appropriate case, prior consistent statements can assist a trial judge to assess the truthfulness or reliability of the declarant: Khan, at paras. 31-34.

[31] In the present case, the defence sought to impeach the complainant's credibility on the basis that it was her co-worker who initially called the police. In these circumstances, it was permissible for the trial judge to reference the statements for the limited purpose of assessing that argument. That is what he did when he concluded: "these immediate complaints do not serve to cast doubt on the complainant's evidence as to what happened."

[32] For these reasons, I would dismiss this ground of appeal.

(iii) Uneven Scrutiny

[33] Finally, the appellant submits that the trial judge failed to meaningfully address the frailties in the complainant's evidence, while immediately seizing upon three areas of his testimony to conclude that he was lying.

[34] To succeed on this argument, the appellant must establish that the trial judge applied different standards of scrutiny. It is not enough "that a different trial judge assigned the same task on the same evidence could have assessed credibility differently": R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 24-25, leave to appeal refused, [2017] S.C.C.A. No. 294.

[35] The trial judge was cognizant of the need to be even-handed in considering the evidence of the appellant and complainant. He expressly reminded himself of this obligation:

I start, as I must, with my focus on the [appellant's] evidence, not to apply heightened scrutiny to this evidence, or to treat it differently from the evidence of the complainant, but because the [appellant's] evidence is the focus of the first two steps in the W.D. analysis.

[36] There is nothing in the trial judge's consideration of the complainant's evidence that suggests uneven scrutiny. It is evident that the trial judge carefully considered her evidence and assessed that she was credible. He found that she was forthright, direct, and unshaken on cross-examination. Further, he noted that her demeanour on her way out of the building after the alleged assault reflected her account of what happened.

[37] The trial judge's analysis focused on three areas of the appellant's evidence: whether the complainant was intoxicated, whether the complainant was upset when she left the apartment, and the appellant's explanation for his activities after the complainant left the apartment. Below, I will consider each area in turn to determine whether the appellant has established uneven scrutiny.

[38] The trial judge found that the appellant went to great pains in his testimony to explain that the complainant was not intoxicated. Of course, whether the complainant was intoxicated to the point of incapacity to consent was not a live issue at trial because her capacity was conceded. The trial judge found that the appellant's testimony was false because it was contradicted by video footage of the parties entering the apartment building, which he found clearly showed that the complainant was intoxicated.

[39] This testimony was a significant factor in the trial judge's credibility analysis of the appellant. He stated, "[h]owever, the fact that the accused is denying something that is obviously true - giving obviously false evidence about the state of inebriation of the complainant - gives me great cause to concern the veracity of everything he said." On appeal, the appellant does not challenge that it was open to the trial judge to reach this conclusion. Thus, this cannot be an instance of uneven scrutiny.

[40] Regarding the issue of the complainant's mood when she left the apartment, the appellant testified that she was happy when she left him. The trial judge concluded that this evidence was incredible given the video footage from the elevator recording her departure from the building. He found that the footage showed that the complainant was clearly upset. This is not an example of uneven scrutiny. The trial judge was properly conducting a credibility analysis having regard to objective evidence.

[41] Before turning to the third area of the appellant's evidence relied on by the trial judge, it is necessary to consider the appellant's other argument regarding the complainant's state of mind. The appellant submits that another equally reasonable inference is that the complainant was overcome by regret about having sexual relations with the appellant after she left the apartment and that her emotions erupted in the elevator.

[42] This alternative inference was never put to the complainant in cross-examination. It is difficult to fault the trial judge for failing to explore an alternative inference that finds no basis in the evidence. Further, the trial judge was entitled to make the finding that he did based on the record. The fact that another judge might have reached a different conclusion does not make it an instance of uneven scrutiny.

[43] The final area of the appellant's testimony is with respect to his actions after the complainant left the apartment. The video evidence showed that he went to the underground parking garage in the building at approximately 3 a.m., about 15 minutes after the complainant left him. The appellant said that he was retrieving a key fob from his parents' car. He was seen on camera briefly and was then off camera for approximately a minute. At trial, he testified that he was urinating in the garage at that point. The appellant then proceeded upstairs to the ground level. He said that he went outside for some air and spoke with the complainant, who was waiting for an Uber.

[44] The Crown theory was that the appellant understood the impact of what he had done and went downstairs to seek out the complainant. The appellant denied this was the case. The trial judge accepted that the Crown's theory was more likely than the appellant's account, which he found to be far-fetched and improbable. However, he stated that he could not rule out the possibility that the appellant's account was true. Ultimately, the trial judge used this evidence as another factor, combined with his other findings, to conclude that the appellant was not credible.

[45] Trial judges are required to look at all of the evidence and reach conclusions regarding credibility. Those conclusions attract "a high degree of deference": Vuradin, at para. 11. In this case, the trial judge properly engaged in a credibility analysis based on his assessment of the appellant's evidence in its entirety. This is not a case of uneven scrutiny.

[46] In summary, the trial judge carefully considered and evaluated the evidence of the complainant and the appellant. He provided clear and compelling reasons why he accepted the complainant's evidence and rejected the appellant's evidence. The record amply supported these credibility assessments. I am not satisfied that he scrutinized the evidence unevenly.

III. Disposition

[47] For the foregoing reasons, I would dismiss the appeal.

Released: "C.W.H." November 26, 2019

"C.W. Hourigan J.A."

"I agree. K. van Rensburg J.A."

"I agree. Thorburn J.A."