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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

COURT OF APPEAL FOR ONTARIO

DATE: 20210111 DOCKET: C64694

Juriansz, Tulloch and Jamal JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

N.K. Appellant

Counsel: Alexander Ostroff, for the appellant Adam Wheeler, for the respondent

Heard: September 3 2020 by videoconference

On appeal from the conviction entered by Justice Calum U. C. MacLeod of the Superior Court of Justice on July 5, 2017, with reasons reported at 2017 ONSC 3988, and from the sentence imposed on October 13, 2017, with reasons reported at 2017 ONSC 5931.

REASONS FOR DECISION

Introduction

[1] The appellant appeals his convictions and sentence, following a judge alone trial on charges of sexual assault, assault, criminal harassment, and uttering threats to kill an animal. He was sentenced to a global term of five years and 11 months incarceration, less five months credit for pre-sentence custody.

[2] On October 7, 2014, the complainant, then 21, accompanied the appellant, then 51, from Ottawa to a cottage near Bancroft. Both the complainant and appellant testified at trial and each gave differing versions of the events that transpired on the night in question.

[3] The complainant testified the appellant took her to the cottage under the false pretense she would be attending a family party. Instead, she found herself alone with the appellant, not knowing where she was, and with no way of leaving. That night, after becoming angry with her for resisting his sexual advances and after threatening to kill her dog, the appellant forced her to engage in sexual activity.

[4] The appellant gave a different version. He testified that he had a long-standing sexual relationship with the complainant and that, on the night in question, she had gone to the cottage with him willingly, and that they engaged in consensual sexual activity.

[5] The following morning, the appellant and the complainant were involved in a car accident, resulting in the car going off the road and rolling into a ditch. The complainant, who was injured, crawled out of the sunroof, and asked residents of a nearby house to call 911. She was subsequently taken by paramedics to a hospital. On two separate occasions, when asked if she was sexually assaulted, she denied she was sexually assaulted. She was first asked by the paramedic who took her to the hospital, and then while at the hospital, she was asked by a nurse.

[6] The appellant also left the scene. He was located at a nearby gas station and arrested by the police, at which time he denied there was anybody else in the car with him.

[7] Upon returning to Ottawa, the appellant attempted to contact the complainant multiple times. He attended at her residence several times, once entering her apartment with keys she left at the cottage. He slipped disturbing notes under her door. The complainant subsequently contacted the police who advised her that they could take no action against the appellant unless she applied for a peace bond. The complainant then applied for a peace bond, at which time, she disclosed the allegations of sexual assault for the first time.

Discussion

[8] The appellant submits that the trial judge failed to properly apply the W.(D) principle, reversed the burden of proof, and applied uneven scrutiny to the evidence. We do not accept these arguments.

[9] The trial judge set out his understanding of the principles of R. v. W.(D.), [1991] 1 S.C.R. 742, in detail before beginning his analysis of the evidence, and structured his analysis accordingly. For example, he explained, at para. 20, that he would deal with the appellant’s evidence first though he heard it last because he “would be bound to acquit [the appellant] if [he] found that evidence either completely compelling or at least sufficient to raise a reasonable doubt.”

[10] The trial judge’s reasons when read as a whole demonstrate his understanding that the trial was not simply a credibility contest between the complainant and the appellant. In assessing the appellant’s evidence in light of all the evidence at trial, it was proper for the trial judge to compare the evidence of the appellant to the evidence of the complainant.

[11] We are not persuaded that the trial judge applied an uneven scrutiny to the evidence of the appellant and of the complainant or otherwise erred in his assessment of the complainant’s credibility. The trial judge found the complainant’s evidence about non-essential matters, such as when the relationship started and when the complainant had veterinary appointments, had discrepancies that “may give rise to concern about the accuracy of the unaided recollection of the complainant”. He found her forthright in acknowledging those discrepancies and concluded the discrepancies did not “undermine the important points in her evidence.” After carefully considering the defects in the complainant’s credibility and reliability, he was entitled to accept, as he did, her explanations for her initial denials she had been sexually assaulted and her testimony that the sexual activity at the cottage was not consensual. A trial judge can accept some, none, or all of a witness’ evidence.

[12] By contrast, the appellant’s evidence was replete with many unexplained contradictions and inconsistencies. The number of times he claims to have had sex with the complainant ranged from less than 10 to between 66 and 107 times. He refused to admit and could not explain the discrepancy in his evidence on this point. He repeatedly claimed to have left the complainant’s cell phone in her apartment after the collision, and when confronted with cell phone records that placed the phone with him, he claimed there was a “well orchestrated plot” to frame him. The appellant did not point to any matter that made it clear the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant: see R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 23-25. R. v. Kiss, 2018 ONCA 184, on which the appellant relies, was an entirely different case. Here, the trial judge considered and accepted the complainant’s explanations for the discrepancies in her evidence while the appellant offered none. He did not, as the appellant argues, simply disregard the inconsistencies in the complainant’s evidence because she acknowledged them. On the other hand, the trial judge considered possible explanations for the discrepancies in the appellant’s evidence, such as confusion about dates, but found them inadequate. Unlike in Kiss, the trial judge did not “[expect] more of [the appellant] than he did of [the complainant].”: Kiss, at para. 96.

[13] The appeal from conviction is dismissed.

[14] The appellant is granted leave to appeal sentence. He submits that the trial judge erred by failing to explain why his pre-sentence time under strict house arrest was not taken into account and, in any event, that the trial judge miscalculated the credit for his time in pre-trial custody.

[15] If the trial judge’s failure to grant the appellant some credit for his time under house arrest was an error, it did not materially affect the sentence imposed, which was entirely fit: see R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at paras. 106-108; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 36-55.

[16] The Crown concedes that the trial judge appears to have miscalculated the appropriate credit for the appellant’s period in pre-sentence custody. The trial judge allowed a credit of five months but, correctly calculated, the credit should be six months and a day. The Crown also states that the victim fine surcharge imposed should be set aside in light of the Supreme Court’s decision in R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at paras. 110-111.

[17] The appeal from sentence is allowed, the credit for pre-sentence custody is varied to six months plus one day, and the victim fine surcharge in the amount of $800 is set aside. The balance of the sentence appeal is dismissed.

“R.G. Juriansz J.A.”

“M. Tulloch J.A.”

“M. Jamal J.A.”