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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220404 DOCKET: C68791 Pardu, Paciocco and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

J.L. Appellant

Counsel: Mindy Caterina, for the appellant Kristen Pollock, for the respondent

Heard: March 23, 2022 by video conference

On appeal from the conviction entered on December 13, 2019 and the sentence imposed on September 18, 2020 by Justice Marquis S. V. Felix of the Ontario Court of Justice.

Reasons for Decision

Overview

[1] J.L. was convicted of sexually assaulting the complainant, his estranged wife. He was also convicted of breach of probation arising from the same event, which is alleged to have occurred on September 17, 2018. Both parties testified during the trial. Credibility was the only contested issue. The trial judge was not left with a reasonable doubt following J.L.’s testimony primarily because J.L. had initially lied to the police by denying his presence at his wife’s place of residence at the time of the alleged offences. The trial judge accepted the testimony of the complainant that J.L. had intercourse with her against her will, and thereby breached a condition requiring him to “keep the peace and be of good behavior” in a probation order he was under for prior offences he had committed against the complainant.

[2] J.L. appeals his conviction, identifying alleged errors in the trial judge’s analysis of the complainant’s credibility. He argues that the trial judge relied unduly on the complainant’s demeanour and that he incorrectly used the absence of exaggeration as a makeweight bolstering her credibility. He also argues that the trial judge misapprehended the importance of material evidence. J.L. also seeks leave to appeal his global sentence of three years and three months.

[3] Although J.L. raises concerns about the trial judge’s credibility evaluation that are not entirely without merit, when examined in the context of the reasons for judgment as a whole, those concerns do not overcome the significant deference that must be given to the trial judge’s credibility determinations, recently reinforced by Karakatsanis J. in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81‑82. As explained below, we therefore deny the conviction appeal.

[4] J.L. also seeks leave to appeal his global sentence of three years and three months. For the reasons below, we grant leave to appeal the sentence, allow the sentence appeal and substitute a global sentence of three years.

Demeanour

[5] J.L.’s main ground of appeal asserts that the trial judge gave undue weight to the complainant’s demeanour in his assessment of her credibility. In his reasons for judgment, the trial judge did comment extensively on the complainant’s demeanour, including her state of emotion and the manner in which she testified, and he stressed repeatedly how closely he had examined the complainant during her testimony.

[6] It is appropriate for trial judges to consider the demeanour of witnesses when evaluating their credibility: R. v. R.D., 2016 ONCA 574, 352 O.A.C. 350, at para 25; R. v. E.A.P., 2022 ONCA 134, at para. 21. However, this court has cautioned that demeanour can be an unreliable gauge of credibility because of the impact that culture, personality and pressure can have on courtroom behaviour, and the risk that stereotypes about credibility will distort the evaluation: R. v. Rhayel, 2015 ONCA 377, 334 O.A.C. 181, at para. 85; R. v. Santhosh, 2016 ONCA 731, 342 C.C.C. (3d) 41; R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534; R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, at paras. 131-32; R. v. T.M., 2014 ONCA 854, 318 C.C.C. (3d) 421. Therefore, it is an error to give undue weight to demeanour in making credibility determinations. Although the trial judge arguably gave more attention to demeanour in his reasons for judgment than is optimal, we are left unpersuaded that the trial judge erred by giving undue weight to demeanour.

[7] First, the trial judge was aware that he should not rely unduly on demeanour when coming to his decision. The parties cautioned him in this regard, and he expressly adopted the principles of credibility evaluation described in R. v. G.A., 2017 ONSC 7493, which include, at para. 142, a caution against overreliance on demeanour. He also demonstrated an understanding that cases should not be decided based primarily on demeanour. He did so by rejecting J.L.’s testimony despite being impressed by J.L.’s demeanour, and by stressing in his reasons that his decision to accept the complainant’s testimony was based on a number of factors.

[8] Second, the lengthy demeanour section in the reasons for judgment was dedicated primarily to explaining why the complainant’s demeanour in pausing before answering and not responding directly to questions did not undermine her credibility. Although the trial judge made this decision based on other aspects of the complainant’s demeanour, including her state of emotion and her straightforward blunt personality, the net result is that on this occasion the trial judge used aspects of the complainant’s demeanour not as a positive indication of her credibility, but as a basis for declining to rely on other aspects of her demeanour in his credibility evaluation. In our view, a decision not to rely on demeanour, even if based on other aspects of demeanour, cannot contribute to a finding that demeanour has been used unduly.

[9] Third, it was not inappropriate for the trial judge to rely on demeanour to discount the weight of the complainant’s refusal to acknowledge in her testimony her interest in reconciling with the appellant in the year prior to the assault. To be clear, there may have been room for criticism if the trial judge relied on the complainant’s demeanour to find that she was being truthful when denying her interest in reconciliation, but this is not what occurred. The trial judge was fully aware that the complainant had not been entirely forthcoming in this area. Instead, he relied on her “animated response” in putting a text message document she had been confronted with face down on the witness box in order to understand why she was not forthcoming. The trial judge concluded that this discrete act demonstrated the complainant’s discomfort in acknowledging, as borne out by the text messages, that there was a time when she wished to reconcile with the appellant. In the trial judge’s view, this explanation for her reluctance to admit her interest in reconciliation blunted the impact of this incident on the credibility of her sexual assault allegation. Although not every judge may have drawn this inference, it was open to the trial judge to do so.

[10] There is no question that the trial judge’s evaluation of the demeanour of the complainant also influenced his overall credibility assessment. But as the trial judge made clear, he relied as well on other factors, including testimony from the appellant that confirmed much of the complainant’s narrative, and the complainant’s emotional condition after the alleged assault. On this record, it cannot be said that the trial judge relied unduly on demeanour.

The Absence of Exaggeration

[11] The complainant told the police that the appellant reinserted his penis in her vagina after ejaculating on her stomach. She did not include this detail in her testimony until she was confronted in cross-examination with her police statement. The trial judge explained why, in his view, this was not a significant contradiction. He then noted that the reinsertion of the penis is an aggravating factor and commented, “If the complainant was singularly focused on animus, she would have […] taken great care to explain each aggravating circumstance, including a re‑introduction of the [appellant’s] penis”.

[12] The appellant contends that the trial judge erred in drawing this inference since it is an error for a trial judge to treat the absence of embellishment as a makeweight in favour of credibility: R. v. Alisaleh, 2020 ONCA 597, at para. 16. We do not agree that the trial judge erred in drawing the inference that he did. We agree that it is improper for a trial judge to infer that a more modest sexual assault allegation is more likely to be true because a false allegation is likely to be serious. But this is not the reasoning the trial judge engaged in. Instead, he reasoned that if the complainant had really concocted the sexual assault allegation out of animus as the appellant alleged, she would not have failed to mention this aggravating feature of her allegation when offering her testimony in chief. This inference was not being used as a makeweight – an affirmative indication of truthfulness – but rather was directed at rebutting or knocking off of the scales a defence challenge to the complainant’s credibility.

The Misapprehension of Evidence

[13] The appellant argues that the trial judge misapprehended evidence relevant to credibility by failing to give it proper effect.

[14] First, he contends that the trial judge misapprehended the relevance of evidence about text messages from the prior year in which the complainant demonstrated a desire to reconcile with the appellant. The evidence about the text messages was relevant to the complainant’s credibility in two ways: (1) the text messages provided evidence that arguably supported the jealousy and animus motive the appellant alleged, and (2) the text messages arguably showed that the complainant was lying when she claimed that she was not, at the time, interested in reconciling with the appellant. The appellant argues that the trial judge misapprehended the relevance of the text message evidence by addressing only the first issue and not the second. We do not agree. The trial judge appreciated and addressed the second issue. As indicated above, he attributed the complainant’s refusal to acknowledge her interest in reconciliation to the complainant’s reluctance to admit her desire to reconcile. Regardless of what may be said about how persuasive that inference is, it demonstrates that the trial judge did not misapprehend the relevance of the text message evidence.

[15] Second, the complainant argues that the trial judge failed to appreciate the relevance of the testimony of the appellant’s probation officer that the complainant told her that the sexual assault had occurred sometime over the past week or over the weekend. In contrast, the complainant testified that the sexual assault occurred 30-40 minutes before she phoned the appellant’s probation officer. When the trial judge analyzed this contradiction, he said that it is “addressed” by the fact that the appellant confirmed that he attended the complainant’s residence prior to the phone call.

[16] The appellant argues that this analysis missed the real point. The significance of the contradiction was not that it created doubt about when the alleged event occurred. Its significance was that if the complainant did tell the probation officer that the sexual assault had occurred sometime over the past week or on the weekend, this casts serious doubt on the credibility of her entire sexual assault allegation. Specifically, if a sexual assault had in fact occurred 30-40 minutes before the phone call as testified by the complainant, it is inconceivable that the complainant would have told the probation officer almost immediately after the sexual assault that the sexual assault had happened days before. Moreover, the trial judge relied on the upset state of the complainant as after-the-fact conduct consistent with the complainant having just been sexually assaulted. If the complainant had told the probation officer that the sexual assault had in fact occurred days before, her state of upset would not have been reliable evidence of the sexual assault.

[17] We accept that the organization of the trial judge’s reasons does create the appearance that he misapprehended the significance of this contradiction. As indicated, when he raised and addressed this issue directly, he appears to have treated the contradiction as if it was relevant only to the timing of the assault. However, a trial judge’s reasons must be read as a whole. When the whole of his reasons is considered, it is apparent that the trial judge had significant reservations about accepting that the probation officer accurately recorded the conversation. He noted earlier in his reasons that when the complainant spoke to the probation officer, she was upset and had to be calmed down before she could be understood; that the interaction between the probation officer and the complainant was not recorded; that the probation officer’s report was not filed as an exhibit; that she was not engaging in an investigative interview; and that while she did her best to make notes, she is not an investigator. Moreover, the trial judge noted that the complainant testified that she in fact told the appellant’s probation officer that the sexual assault had occurred only moments before. Although the trial judge could have been more explicit, it seems clear that he was not persuaded that the complainant had told the probation officer that the sexual assault occurred the week before or on the weekend. Although the appellant takes issue with that finding given that the probation officer had notes, this finding was open to the trial judge. The instant point is that an examination of the whole of the record precludes a finding that the trial judge misapprehended the significance of this evidence.

Conclusion on Conviction Appeal

[18] We recognize that the appellant made incidental arguments before us taking issue with the trial judge’s treatment of other contradictions and arguing that inadequate attention was given to the appellant’s animus theory. It is not for us to retry the case. We will therefore say no more on those issues and would dismiss the conviction appeal.

The Sentence Appeal

[19] The Crown concedes that the trial judge erred in principle by imposing a sentence of three years and three months on the sexual assault conviction after the trial Crown requested a global sentence of three years. In order to exceed the sentence recommended by the trial Crown, the trial judge was obliged to first alert the parties of his intention to do so and then give them an opportunity to make submissions: R. v. Blake-Samuels, 2021 ONCA 77, at paras. 30-34, 36. But he did not do so.

[20] We are persuaded that this error affected the sentence. We have had the benefit of relevant submissions on whether the sentence requested by the trial Crown should be exceeded. The appeal Crown conceded before us that the three‑year sentence the trial Crown had requested is fit and could offer no basis upon which the additional three months of incarceration would be required. We are therefore satisfied that, had the trial judge conducted the inquiry he should have conducted, it is probable that he would have acceded to the sentence the trial Crown requested.

[21] In the face of this error, it falls to us to impose a fit sentence. We reject the sentencing range suggested by the appellant. The aggravated factors in this case make a sentence at the low end of the range inappropriate. We set aside the sentence on the sexual assault conviction and substitute the sentence the trial Crown requested of three years of incarceration.