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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).
(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.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(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.
(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.
(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.
(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: 20200116 DOCKET: C65659
Pardu, Roberts and Thorburn JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Saied Ghadghoni Appellant
Counsel: David M. Humphrey and Jill D. Makepeace, for the appellant Hannah Freeman, for the respondent
Heard: December 6, 2019
On appeal from the conviction entered on June 9, 2017 and the sentence imposed on June 27, 2018 by Justice Hugh K. O’Connell of the Superior Court of Justice.
Pardu J.A.:
[1] Saied Ghadghoni appeals from his conviction for sexual assault and seeks leave to appeal from the 30-month sentence which followed upon his conviction. The basis for the conviction was a finding that the appellant initiated sexual intercourse with a sleeping woman, circumstances inconsistent with consent on her part.
[2] The appellant submits that the trial judge applied uneven scrutiny to the evidence, rigorously scrutinizing his evidence but tolerating inconsistencies in the complainant’s evidence.
[3] I would reject this ground of appeal. The appellant’s statement to the police regarding the relevant events was inconsistent with other objective, relatively uncontroversial evidence, which went to the heart of whether he had intercourse with a sleeping woman. The inconsistencies in the complainant’s evidence went to peripheral matters which the trial judge found did not materially affect the complainant’s credibility and reliability regarding the central sexual assault allegation.
[4] I would allow the sentence appeal. The trial judge made an unreasonable factual finding that affected the sentence.
A. Factual narrative
[5] The appellant met the complainant at a gym. They exchanged a few social media and text messages. About a day later, they both separately went to a nightclub event. The complainant went with her own friends and family. They arrived at about 11:45 p.m. and sat at a booth they had reserved. The appellant said he met his own friends and family at the club.
[6] The complainant said that she had less than three drinks, but she became profoundly intoxicated. The appellant did not consume alcohol. The appellant and the complainant interacted at some points throughout the evening, sometimes dancing together.
[7] Video surveillance captured the appellant and the complainant leaving the nightclub at about 2:39 a.m. She had gone out for a cigarette but was so intoxicated she could barely stand up or light her own cigarette. The bouncer refused her re-entry. After a short discussion, the appellant took the complainant to his car. She needed his physical support to get to the car.
[8] In his police statement, the appellant said the complainant told him she could not go home, and she agreed with his suggestion to go to his parent’s home, which was about 40 minutes away. According to the appellant, the complainant vomited in his car after they left the club. He said they arrived at his home around 3:30 a.m. He noted that the complainant was so intoxicated she could not get out of the car or walk by herself.
[9] The appellant says he helped the complainant clean the vomit off her person, gave her clothing to wear, helped her change, and gave her food and water. Afterwards, according to the appellant, the complainant really wanted to have sex with him, initiated that contact, and participated enthusiastically and vigorously. The appellant said they then cuddled and fell asleep at around 5:00 a.m.
[10] The appellant said he and the complainant slept until about 8:00 or 8:30 a.m. She asked him the time and said she had to go home so she could be at work by 11:00 a.m. The appellant told the police that the complainant then initiated sexual intercourse again, and that she was a willing and active participant.
[11] The complainant had no memory of events unfolding after 12:30 a.m. She testified that she woke around 8:00 a.m. to find herself naked, lying on her stomach with the appellant having intercourse with her from behind. She said she told the appellant “stop” two or three times and the appellant replied, “hold on, hold on”, at which point she got up from the bed. She said about 20 seconds elapsed between the time she realized the appellant was having intercourse with her and the time she pushed herself off the bed.
[12] The complainant asked the appellant to drop her off at her friend R.’s home. She said she had no idea where she was and was nervous about antagonizing the appellant. Once she was dropped off at her friend’s car, she began crying and told her friend what she thought had happened. Her friend took her to a police station. An investigation began, leading to the charge against the appellant.
B. The trial judge’s reasons
[13] The trial judge concluded that the complainant’s intoxication level was incompatible with the appellant’s description of the first sexual encounter after they arrived at his home. The trial judge relied on the toxicologist’s evidence and video surveillance of the complainant and appellant outside the club, just before they left.
[14] The toxicologist calculated that the complainant would have had a very high blood alcohol concentration at around 1:30 a.m. (between 175-344 milligrams of alcohol in 100 milliliters of blood) and around 3:00 to 3:30 a.m. (between 155-314 milligrams of alcohol in 100 milliliters of blood). The trial judge noted the effects of such levels of alcohol at paras. 175-176 of his reasons:
[S]uffice it to say I do find that the B.A.C. contents as [the toxicologist] described them to be are [ sic ] consistent with the evidence of [the complainant] and the video outside of the bar of her level of impairment.
Some of the indicia of impairment referred to by this witness once you get higher up between the 150 and 200 milligrams of alcohol in your blood are consistent with the effects [the complainant] was showing: loss of balance, issues with gross fine motor coordination, and I refer to the video again, possibly nausea and vomiting and possibly severe sedation, which I take it is a very deep sleep.
[15] The trial judge also described the video surveillance of the complainant outside the club, at paras. 94-96 and 142:
[I]n the video it’s clear she is having serious trouble gaining her balance . She appears at one point in time on the video, and indeed does, not simply appears, to stumble backwards into the rope cord, and the bouncer has to actually put his hand up to ensure she doesn’t fall over, and that is manifestly obvious.
I also note that in the video [the appellant] lights a cigarette for her. Perhaps he did so in a chivalrous manner, but I certainly find she has no recollection of this event and it appeared to my eye on that video that he lit her cigarette because she was in no position to actually stand there, hold it and light it herself. Her motor skills were grotesquely affected, and again resort only be made [ sic ] to that video which is an exhibit in this proceeding.
...and there was some evidence there was ice outside, but I’m completely satisfied on all the evidence this wasn’t a slip based on ice. This was loss of balance based on manifestly severe intoxication by [the complainant] on that evening.
But again, as I found, her inability to gain balance outside, even while standing still, and that’s critical, and that video speaks a million words, is because she was so inebriated that she couldn’t stand. And I remind again that it was the bouncer whose good hand stopped her from literally falling right over the velvet cord…
[16] The appellant also told police that the complainant’s phone was dead. When she woke around 8:00 a.m., the complainant’s cellphone was turned off and was on the appellant’s side of the bed. The complainant testified that the appellant told her he had turned off her phone as it had no battery power. However, when the complainant turned on her phone after waking, the battery was at 27 percent power, and she saw she had missed calls and texts from friends who were concerned about her after she disappeared from the club. As also reflected in the cellphone records produced, her use of the phone after she woke around 8:00 a.m. and on the way to her friend’s home demonstrated that the battery was not dead at that time. The trial judge concluded that the appellant had turned off the complainant’s phone so that his activities with the complainant would not be interrupted.
[17] The trial judge concluded that the appellant’s narrative of the events at his home was not true and did not raise a reasonable doubt. The complainant would have been incapable of the activities the appellant described as the first consensual sexual intercourse. The appellant himself said that the complainant was incapable of walking by herself when they arrived at his home. The trial judge found this first incident of intercourse described by the appellant did not occur. This rejection of the appellant’s evidence was grounded in other objective evidence and went to the central issue of consent to sexual contact between the parties.
[18] The trial judge also found that the complainant was asleep when the appellant penetrated her in the morning, around 8:00 a.m. As the complainant was asleep, she could not and did not consent to the sexual intercourse. Consequently, the trial judge found the appellant guilty of sexual assault.
C. Analysis
(1) Appeal from conviction
[19] I begin with the observation that the defence’s argument at trial was that the complainant regretted going to a near stranger’s home and having sexual relations with him. As a result, the complainant “reinvented” her account of what had occurred. Defence counsel indicated that he did not doubt the complainant’s sincerity but suggested to her that she decided “this gentleman was not [her] best choice and [she] decided to block it.”
[20] The appellant submits the complainant’s evidence required heightened scrutiny because of the large gap in her memory, her intoxication, and various inconsistencies in her evidence.
[21] The complainant’s intoxication level was incompatible with her stated alcohol consumption. The trial judge accepted her evidence that she had three drinks. However, he found that she clearly had had more alcohol than that, but he could not say how that came to pass. The toxicology evidence provided the most reliable evidence of the complainant’s intoxication level.
[22] Defence counsel pointed out several inconsistencies in the complainant’s evidence. In examination in chief, she said she finished her third drink; in cross-examination she said she did not remember finishing it. At trial, she said that she held her shoes in her hands and was barefoot when she went out to the appellant’s car in the morning, when the appellant was about to take her to her friend’s home. Defence counsel pointed out that she had also said her shoes were on her feet at this time.
[23] The trial judge did not view these as material inconsistencies. The complainant was testifying at trial about events occurring more than three years previously.
[24] The appellant argues the trial judge unfairly scrutinized and did not give fair consideration to evidence favouring the defence.
[25] There was video surveillance showing the appellant lighting a cigarette for the complainant, and dialogue with the bouncer outside the club. The appellant argues the trial judge should have used this footage to confirm the appellant’s evidence that the complainant initiated the departure from the bar. Instead, the trial judge found that the appellant initiated the departure. He concluded that:
…she was…so inebriated the bouncer wouldn’t let her back in. She couldn’t get a jacket, and [the appellant]’s mind at that point in time, I’m completely satisfied, was to get her into the car and get her back to his place so that things could happen as he wanted them to, and in a situation where there is not one iota of consent to her doing it, even after I carefully have assessed [the appellant], the now found guilty party’s evidence as to what he said happened at that house where he resided with his parents at the material time.
[26] The appellant submits that the trial judge’s unfounded finding that the appellant initiated the departure became an integral component of his analysis that tainted his assessment of the entire evidence. Specifically, the trial judge viewed this as the first of several steps in what he concluded was the appellant’s deliberate scheme to isolate and take advantage of the complainant. The trial judge’s error resulted in uneven scrutiny leading him to accept the complainant’s evidence and reject any evidence that did not fit within this frame.
[27] I agree that the evidence does not support that the appellant planned the offence from the time he and the complainant left the nightclub. This would have required the appellant to have foreseen that the complainant would go outside to smoke, that the bouncer would not allow re-entry into the club, and that the complainant would say she could not go home. The earliest indication of planning might be when the appellant took the complainant’s cell phone and turned it off, sometime after they were both in bed.
[28] However, I do not accept that the trial judge’s error tainted his entire view of the evidence or his determination of the central issue in the case, namely, whether the appellant had sexual intercourse with a sleeping woman. As a result, the question of who initiated the departure from the bar was peripheral to the central issue in the case.
[29] The appellant argues that the trial judge should have given more weight to his father’s testimony, who saw the complainant in the home after she woke up and was preparing to leave. The father testified that he came downstairs in the morning, said hello and that his son then introduced him to the complainant. He said the complainant did not appear upset during their brief exchange. After they left a few minutes later, the father went upstairs to a window on the second floor. He saw the appellant and the complainant in the car together and they appeared to be taking a selfie photograph and they were smiling. The trial judge found that the father’s evidence was “embellished” and held that the complainant was anxious to get out of the home, did not know who the person was, she was scared and was trying to stay calm.
[30] The trial judge accepted that the complainant was anxious to get out of the home, did not know who the father was and did not exhibit any upset to the father during their meeting for understandable reasons.
[31] The appellant submits that differences between the evidence of the complainant and her friend R. about the precise timing of the disclosure to R. and whether they went to Tim Horton’s before going to the police station should have undermined the complainant’s credibility and reliability. The appellant makes the same argument about differences between the evidence of the complainant and R. about the frequency of the complainant’s visits to nightclubs on other occasions. Again, the trial judge did not regard these differences as material to his assessment of the complainant’s credibility and reliability.
[32] The appellant argues that the trial judge erred by equating incapacity to consent to sexual relations with the entire period for which the complainant had no memory (i.e. from around 12:30 a.m. until the complainant woke up around 8:00 a.m.). Whether or not she had the capacity to consent to sexual relations during this earlier period was not relevant to the question of whether the appellant initiated sexual intercourse with her when she was sleeping.
[33] Nothing in either the appellant’s or the complainant’s narrative of events or defence counsel’s submissions suggests that the complainant was impaired by alcohol when she woke up to the extent that she could not be a reliable historian of what she experienced as she woke up. She got up, got dressed, looked for her underwear, found her phone, called and texted friends, spoke to the appellant and asked for a ride to a friend’s home. She went to the police station and the hospital and recounted her experience, as she saw it.
[34] The trial judge expressly cautioned himself to apply R. v. W.(D.), [1991] 1 S.C.R. 742, to the statement the appellant gave to police. He expressly considered the complainant’s reliability and credibility, and the other evidence. He cited R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41, which states:
Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately
i. observe;
ii. recall; and
iii. recount
events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence. [Citations omitted.]
[35] To subject the evidence favouring the defence to a stricter level of scrutiny than the evidence of the Crown is an error of law, which displaces the deference ordinarily owed to the trial judge’s credibility assessment: R. v. Phan, 2013 ONCA 787, 313 O.A.C. 352, at paras. 30-31.
[36] In R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at paras. 58-59, Doherty J.A. described the difficulties associated with this argument,
Counsel … contends that the trial judge applied a higher standard of scrutiny in his assessment of the appellant's evidence and credibility than he did when considering the evidence and credibility of [the complainant].
This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge's credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.
[37] This difficulty was reiterated in R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39:
The “different standards of scrutiny” argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations.
[38] Here, I am not persuaded that the trial judge applied different scrutiny to Crown and defence evidence. He rejected the appellant’s evidence and accepted the complainant’s evidence based on the evidence as a whole, logical inferences, and the importance of particular testimony to the central issue in the trial. The trial judge expressly considered the same arguments about the credibility and reliability of the evidence now made on appeal.
[39] This is not a case like Howe, where both the defence and Crown witnesses lied under oath, and defence evidence was rejected because of the lie, but the Crown witness’s lie did not affect the assessment of her credibility.
[40] Nor am I persuaded that the trial judge materially misapprehended the evidence on the central issue, which is whether the appellant had sexual intercourse with a sleeping woman.
(2) Appeal from sentence
[41] When the appellant was a child, he suffered a severe head injury that left him with serious cognitive deficits. Dr. MacGregor explained that people with this type of brain injury, “just can’t put the brakes on, they just have to keep going, that’s the impulsivity, distractibility, just can’t stop it.” Dr. MacGregor further testified that he has problems with impulsivity, distractibility and self-control. Expert evidence indicated that he has difficulty recognizing social cues in interactions with others. He has limited ability to learn from punishment.
[42] The trial judge concluded that an appropriate sentence would have been 36 months. However, he ultimately imposed a 30-month sentence, because serving prison time would be more difficult for the appellant, due to his disabilities.
[43] The appellant submits that the trial judge erred by failing to recognize that his disabilities reduced his moral blameworthiness. The appellant submits further that the trial judge erred in concluding that the offence was methodically planned over a sustained time. Finally, the appellant argues that the trial judge misidentified the appropriate range of sentence as from two years less a day to four years. The appellant submits that the usual range of sentence for intercourse with a sleeping or incapacitated victim is between 18 months and three years.
[44] The trial judge did not mitigate the sentence further because he concluded that there was no causal link between the appellant’s disabilities and the offence. He noted the offence was not “an impulsive act based on the personality defect based on his brain injury or that can rationally be connected to his brain injury.” The trial judge observed that it was clear from the appellant’s videotaped police statement that he was “well aware of the issue of consent.”
[45] Cognitive impairment, where it affects behaviour resulting in criminal liability, “can attenuate the moral blameworthiness attached to that behaviour. It can also justify less emphasis on the principles of specific and general deterrence”: R. v. Manitowabi, 2014 ONCA 301, 318 O.A.C. 175, at para. 64.
[46] On this record, however, it cannot be determined whether this offence was committed impulsively or whether the appellant’s cognitive deficits otherwise contributed to his commission of the offence.
[47] However, as earlier explained in para. 27, I agree that the evidence does not support the trial judge’s finding that the offence was methodically planned from the time they left the club. The trial judge therefore erred in relying on this characterization of the offence as an aggravating factor that was not established by the Crown beyond a reasonable doubt.
[48] I further agree that the usual range identified in past jurisprudence for sexual assaults committed in similar circumstances has been between 18 months and three years: see, for example, R. v. Christopher Smith, 2015 ONSC 4304, at paras. 32-33. Even if the trial judge identified a range that slightly exceeds that imposed in similar circumstances, the actual sentence imposed is within the appellant’s proposed range. Deviation from a sentencing range is not, in itself, an error in principle: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 60.
[49] The appellant submits that a lesser sentence would have been appropriate because he was only 22 years old at the time of the offence, the offence was not planned, his head injury reduced his moral blameworthiness, he immediately desisted when the complainant told him to stop, he had no prior record, and the offence was out of character. He argues that rehabilitation should have been given more weight in fashioning an appropriate sentence.
[50] I agree further that the trial judge could have imposed a lesser sentence within the appropriate range that has been identified. The fact that he did not, does not open the door to appellate interference, absent an error in principle that had an impact on the sentence.
[51] In my view, the trial judge erred by finding an aggravating factor, that the appellant methodically planned to commit the offence from the time he left the club; this was not proven beyond a reasonable doubt. As a result, I would reduce the appellant’s sentence to two years less a day.
[52] Accordingly, the appeal from conviction is dismissed. I would allow the appeal from sentence and substitute a sentence of two years less a day.
Released: January 16, 2020 “GP” “G. Pardu J.A.” “I agree L.B. Roberts J.A.” “I agree J.A. Thorburn J.A.”
