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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210621 DOCKET: C68249

Rouleau, Hoy and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

E.M.M. Appellant

Counsel: Riaz Sayani, for the appellant Nicholas Hay, for the respondent

Heard: June 2, 2021 by video conference

On appeal from the conviction entered on December 4, 2018 and the sentence imposed on September 12, 2019 by Justice Jane E. Kelly of the Superior Court of Justice.

Hoy J.A.:

[1] The appellant appeals his conviction for sexual assault. He also applies to adduce fresh evidence in relation to sentence and, based on that evidence, seeks leave to appeal his sentence.

The background

[2] The trial unfolded over two days. The issue at trial was whether the sexual activity that occurred was consensual.

[3] The complainant and two female friends, S. and V., were invited to the appellant’s apartment. There, they hung out with the appellant and two of his male friends. The complainant was 16 years of age; the appellant was 18 years of age. The complainant and her friends were offered, and took, pills which they believed were Xanax. The three males did not take any of the pills. After a while, the complainant and V. went into one of the bedrooms and laid down. At some point, the appellant joined them. At a certain point, V. left the room.

[4] The complainant testified that after V. left the room, the appellant began touching her and that she felt heavy, unable to move from the drugs, and was in and out of consciousness. The complainant testified that the appellant got on top of her and tried to penetrate her. She called out for V. and told the appellant to stop. (V. did not testify at the trial.)

[5] S. testified that she heard the complainant calling for V. and yelling “stop”, while she was in another room with one of the males. She testified that the complainant sounded scared.

[6] The appellant testified that V. communicated to him that the complainant wanted to lose her virginity, that the sexual activity began before V. left the room, and that the sexual activity that occurred, including intercourse, was consensual.

[7] A few days after they had attended at the appellant’s apartment, the complainant and S. reported the incident to the police.

The trial judge’s reasons

[8] The trial judge considered the principles in R. v. W.(D.), [1991] 1 S.C.R. 742. She did not believe the evidence of the appellant and explained why. Not only did she not believe his evidence, but, she stated, when considered in the context of the entire evidence, it did not raise a reasonable doubt. Finally, she considered whether, based on the evidence that she did accept, the Crown had proven the offence beyond a reasonable doubt.

[9] The trial judge noted that the reliability of the evidence was a significant issue that required careful consideration. The complainant and S. had consumed drugs before the sexual activity occurred. The trial judge listed several details about the incident that the complainant had difficulty remembering. The trial judge found that while the complainant remembered some parts of the incident and not others, there was no doubt in her mind about whether she consented. Moreover, her evidence was somewhat corroborated by S., who was no longer friends with the complainant and testified at trial under subpoena.

[10] The trial judge accepted that there were inconsistencies in the evidence of S., and listed some of them, but she accepted that at some point S. heard the complainant calling for V. and yelling “stop”.

[11] The trial judge accepted that the complainant and S. discussed the incident before going to the police. However, she rejected appellant’s trial counsel’s suggestion that they colluded to fabricate the allegations against the appellant.

[12] Based on the evidence that she accepted, the trial judge was satisfied beyond a reasonable doubt of the appellant’s guilt.

[13] She sentenced the appellant to a period of imprisonment of two years less a day.

The issues on appeal against conviction

[14] The appellant advances two arguments on his appeal against conviction.

[15] First, he argues that the trial judge failed to consider whether innocent collusion undermined the reliability of the complainant’s and S.’s testimony.

[16] Second, he argues that the trial judge failed to apply the second step of W.(D.) in a meaningful way. Instead, the appellant says, the trial judge impermissibly engaged in a credibility contest.

(1) Innocent collusion

[17] I reject the appellant’s argument that this court should order a new trial because the trial judge failed to consider whether innocent collusion undermined the reliability of the complainant’s and S.’s testimony.

[18] The appellant conflates the fact that the trial judge did not expressly address innocent collusion in her reasons with the issue of whether she considered the possibility of it in assessing the reliability of the complainant and S.’s evidence.

[19] Innocent collusion occurs when, through mere conversation, false memories are implanted and overwhelm independent recollection. However, courts must be wary of jumping to the conclusion that that a witness’s evidence is no longer independent, and has been tainted by innocent collusion, simply because of a conversation. Witnesses may know each other. It is human nature to discuss what happened immediately after offending behaviour takes place: Peter Sankoff, The Law of Witnesses and Evidence in Canada, loose-leaf (Toronto: Thomson Reuters, 2019), at §7.4(c), adopted in R. v. L.(R.G.) (2004), 185 C.C.C. (3d) 55 (Ont. C.A.), at para. 37, per Weiler J.A. (dissenting, but not on this point), appeal quashed, 2005 SCC 18, [2005] 1 S.C.R. 288.

[20] Defence counsel’s primary argument at trial was that the complainant and S. intentionally colluded. She adverted to the risk of innocent collusion in her reply submissions but had laid no foundation during the trial to this submission. The complainant testified that she had an independent recollection of events and S.’s testimony that she heard the complainant call out for V. and yell “stop” withstood cross-examination. Defence counsel did not cross-examine the complainant nor S. as to the risk that their recollection of events had been tainted by their discussions before going to the police.

[21] The trial judge explicitly accepted that the complainant and S. discussed the incident before going to the police and rejected intentional collusion in her reasons. She also specifically noted that the reliability of the evidence was a significant issue that required careful consideration, and she carefully considered the reliability of the evidence.

[22] This case is different from R. v. Burnie, 2013 ONCA 112, 303 O.A.C. 76, R. v. Burke, [1996] 1 S.C.R. 47, and R. v. F.(J.) (2003), 177 C.C.C. (3d) 1 (Ont. C.A.), on which the appellant relies.

[23] Unlike this case, Burnie involved similar fact evidence of two alleged instances of sexual assault. Burnie applied R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, which held that if there is an air of reality to an allegation of collusion, before admitting similar fact evidence, a trial judge is required to consider whether the Crown has proven on a balance of probabilities that the evidence was not tainted by collusion.

[24] Burke and F.(J.) did not involve similar fact evidence. But they too are very different from this case.

[25] In Burke, Sopinka J., writing for the Court, found that the convictions of a former Christian Brother at the Mount Cashel Orphanage for indecent assault were unreasonable in light of the evidence at trial. The trial judge’s assessment of the credibility of the two complainants, E. and C., could not “be supported on any reasonable view of the evidence”: at para. 7. Their evidence contained many inconsistencies and falsehoods, and C. had a history of chronic dishonesty. However, Sopinka J. wrote, the “strong possibility of collusion” should also have prevented the trial judge from using C.’s evidence to corroborate that of E.: at para. 33.

[26] When contacted by police investigating abuse at the orphanage, C. claimed he had nothing to say. It was only after C. had been contacted by the lawyer who was pursuing a highly publicized civil action on behalf of E. against the accused that C. came forward with his claim. There was a risk that C.’s claims against the accused arose from his knowledge of the statements made by E., gleaned through his discussions with what became their common lawyer. Nothing in the trial judge’s reasons indicated that she was alive to that possibility.

[27] The appellant does not argue that the verdict in this matter was unreasonable. Here, unlike in Burke, the trial judge explicitly accepted that the complainant and S. discussed the incident before going to the police. And, unlike in Burke, where C.’s position in relation to the alleged criminal conduct changed after discussions with E.’s lawyer, in this case there was no evidence that either the complainant or S. changed her version of events after they discussed the incident.

[28] In F.(J.), at the behest of someone who had a personal animus against the accused, the complainants, over the course of many conversations and meetings, discussed a karate stretch that the accused had performed on them. The complainants heard about sexual accusations made by other boys in a context in which the accused was portrayed as a “sexual pervert and predator”. This court concluded that there was “serious potential for inadvertent tainting… particularly tainting about [the complainants’] perception of the appellant’s intent” in performing the stretch: at para. 79.

[29] This case is not about the risk of a slight reinterpretation of an event, such as in F.(J.). In that case, the core event – the stretch – was the same across complainants. The potential for innocent collusion related to the allegations of sexual purpose, not the touching itself. Here, the appellant relies on the possibility of innocent collusion to say that the complainant’s vivid recollection of core events – being immobilized and drifting in and out of consciousness, being assaulted, crying out for V. and yelling “stop” repeatedly – were innocently implanted through her conversations with S. before going to police. It is difficult to understand how such a vivid recollection of core events could have been the product of innocent tainting.

[30] Trial judges are presumed to know the law. As Moldaver J.A., as he then was, did in R. v. C.(U.), 2009 ONCA 367, 248 O.A.C. 341, at para. 26, in the circumstances of this case, I start from the premise that, in assessing the reliability of the Crown’s evidence, the trial judge considered the possibility of innocent collusion and was satisfied that it either lacked an air of reality or was satisfied that the key elements of the complainant’s and S.’s evidence were not tainted by collusion. The appellant has presented nothing to the contrary.

(2) The second step of W.(D.)

[31] Turning to the appellant’s argument that the trial judge failed to apply the second step of W.(D.) in a meaningful way, the appellant says the trial judge’s analysis of the second step of W.(D.) was perfunctory and she did not explain why the appellant’s evidence did not raise a reasonable doubt. In particular, he submits that she failed to consider that two pieces of evidence (evidence of saliva on the complainant’s underwear and the evidence about who was in the room) were equally or more consistent with his version of events, and failed to consider S.’s evidence that V. and the complainant engaged in sexual activity with each other on another occasion. He says the evidence of V. and the complainant’s prior sexual activity with each other makes it more likely that, on the complainant’s behalf, V. would have asked him to take the complainant’s virginity, as he testified was the case. Effectively, he submits that if the trial judge had considered all this evidence at the second step, she would have found that his evidence raised a reasonable doubt. Instead, as I have said, the appellant argues that the trial judge impermissibly engaged in a credibility contest.

[32] I reject this argument.

[33] The appellant asks us to parse the trial judge’s reasons. The trial judge expressly considered the evidence of the saliva on the complainant’s underwear and of who was in the room in her analysis of the third step of W.(D.). She essentially treated the saliva evidence as neutral and found that both the appellant and S.’s evidence as to who was in the room corroborated the complainant’s evidence. A trial judge need not address every piece of evidence in her reasons. It is not surprising that the trial judge did not advert to the evidence that V. and the complainant engaged in sexual activity with each other on a prior occasion; it is not probative of whether V. brokered a deal for the appellant to take the complainant’s virginity.

[34] The judge’s careful reasons clearly demonstrate that she understood her verdict should not be based on a choice between the appellant’s and the complainant’s evidence, but on whether, based on the whole of the evidence, she was left with a reasonable doubt.

Fresh evidence and leave to appeal against sentence

[35] The proposed fresh evidence is that the appellant suffered hardship while in custody, both as the result of being assaulted and COVID-19 restrictions, and that he has made efforts towards rehabilitation since being released on bail pending appeal.

[36] The appellant does not argue that the trial judge erred in law or principle in imposing the sentence that she did, or that the sentence imposed was demonstrably unfit. Rather, he argues that if his appeal against conviction fails, this court should reduce his sentence to time served (i.e. less than seven months) based upon the proposed fresh evidence as to circumstances arising after his sentence was imposed and thereby avoid his reincarceration.

[37] The court cannot act as a de facto parole board. It will vary a sentence based on changes in circumstances relevant to sentence that occurred between the imposition of sentence and the hearing of the appeal only exceptionally: R. v. Ghadban, 2015 ONCA 760, 342 O.A.C. 177, at para. 25; R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71, at paras. 112, 117. The exceptional circumstances in Ghadban related to the progress that the offender had made while awaiting the hearing of his appeal. The appellant’s efforts toward rehabilitation since on bail described in the proposed fresh evidence are far from the “very unusual significant strides” taken by the appellant in Ghadban, at para. 23. Indeed, the trial judge had before her essentially the same qualitative information about the appellant’s rehabilitative prospects and efforts as contained in the proposed fresh evidence.

[38] Moreover, in this case, which involves the abuse of a person under the age of eighteen years, s. 718.01 of the Criminal Code, R.S.C., 1985, c. C-46, requires that the court give primary consideration to the objectives of denunciation and deterrence of such conduct. Reducing the appellant’s sentence to time-served would not reflect the gravity of the offence. As the trial judge noted, the complainant was 16, drugged, and virtually helpless when the assault occurred.

[39] Accordingly, the fresh evidence does not fit the Palmer criteria: Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775.

[40] The appellant is eligible for parole shortly. No doubt the parole board will pay careful attention to positive steps taken by the appellant since he was sentenced and his experience in custody.

Disposition

[41] Accordingly, I would dismiss the appeal against conviction. I would grant leave to appeal the sentence, but I would dismiss the fresh evidence application and the sentence appeal.

Released: June 21, 2021 “P. R.” “Alexandra Hoy J.A.” “I agree. Paul Rouleau J.A.” “I agree. K. van Rensburg J.A.”