Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court of Appeal for Ontario

Date: 20230111 Docket: C66805

Judges: MacPherson, Pardu and Coroza JJ.A.

Between: His Majesty the King Respondent

And: Parveen Sharma Appellant

Counsel: James Lockyer and Madeleine Ross, for the appellant Rebecca De Filippis, for the respondent

Heard: January 9, 2023

On appeal from the conviction entered on February 22, 2019 by Justice Jennifer Woollcombe of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals his convictions for two counts of sexual assault following a judge-alone trial in the Superior Court of Justice. At the conclusion of oral argument, we dismissed the appeal with reasons to follow. We now provide those reasons.

[2] The complainant rented a basement apartment from the appellant. According to the complainant, while the appellant’s wife was out of the country, the appellant sexually assaulted her on October 2 and 3, 2015.

[3] The complainant testified that on October 2, 2015, the appellant came down to her apartment asking her to perform a massage on his injured foot. While she massaged his foot, the appellant rubbed his feet on her thigh, grabbed her shoulders, tried to kiss her, put his hand in her shirt, and touched and kissed her breasts. She pushed him away, telling him to stop. He then apologized and left.

[4] The following evening, on October 3, 2015, the appellant returned to her apartment, purporting to check the heating system. According to the complainant, the appellant pulled her to him and tried to put his hand under her shirt. The complainant pushed him and told her to stop, but he did not. He then put his hands in her underpants and touched her vaginal area. The complainant then told the appellant that they needed to talk. They went to a coffee shop where the complainant told the appellant that she was not comfortable with what he was doing and that she was not interested in him. After a stop at the pharmacy, the parties returned home. Shortly after, the appellant returned downstairs to the complainant’s apartment. According to the complainant, the appellant grabbed her, started kissing her, removed her nightgown, pushed her onto the couch, and inserted his penis in her vagina without her consent. She testified that she was telling him to stop.

[5] The complainant reported the incident to the police on October 4, 2015. At the police station, the complainant spoke to Cst. Campbell. She also provided a videotaped statement to Cst. Melo-Franchino. She also provided a third further videotaped statement to police on January 23, 2018.

[6] At trial, it was not disputed that sexual activity had taken place on October 3, 2015. The issues before the trial judge were whether the Crown had proven beyond a reasonable doubt that there was any sexual activity on October 2, 2015, and that the complainant did not consent to the sexual activity on both dates.

[7] The appellant did not testify. Accordingly, this case turned on the trial judge’s assessment of the complainant’s credibility and reliability.

[8] The complainant was confronted with the defence position during cross-examination. Defence counsel suggested that it was the complainant who pursued a relationship with the appellant and that she escalated matters once the appellant’s wife had left for India. The defence relied heavily on the record of electronic communications exchanged between the complainant and appellant once the appellant’s wife left for India and specifically with messages in the time period leading up to October 2 and 3, 2015.

[9] The trial judge accepted the evidence of the complainant in relation to both counts. With respect to the electronic communications, the trial judge found that the content of the messages did not undermine the complainant’s credibility, nor did they reveal that the complainant had any sexual interest in the appellant. After noting that the complainant withstood rigorous cross-examination, she stated:

I do not accept the defence position that alleged inconsistencies in her evidence made her incredible. To the contrary, I thought that the defence positions respecting her credibility were often unsupported by the evidence or unfair to the complainant. I found her evidence to be extremely believable and persuasive.

[10] On appeal, counsel for the appellant acknowledges that a trial judge’s finding of credibility attracts considerable deference. However, the appellant argues that no such deference is owed here because the trial judge misapprehended the evidence of the complainant and failed to address the cumulative impact of the weaknesses in the complainant’s evidence on her credibility.

[11] It is not necessary to catalogue and review every argument made by defence counsel regarding the complainant’s credibility. Several of these arguments were renewed on appeal. Needless to say, the trial judge thoroughly examined the evidence and considered the defence submissions regarding several critical areas including the following:

• Whether the electronic communications disclosed that the complainant was flirting with the appellant and the initiator of contact between the two.
• Whether it was the complainant who introduced the idea of a foot massage
• Whether it was the complainant who initially offered to massage the appellant’s injured foot in text messages on October 1, 2015.
• Whether the complainant’s testimony that an emoji she sent to the appellant on October 2, 2015 was “kind of naughty” undermined her credibility.
• Whether the complainant deliberately withheld text and WhatsApp messages between her and the appellant because she did not disclose them to anyone until after the preliminary inquiry, when the police and defence counsel requested the messages.
• The various inconsistencies between what she testified to at trial and what she initially told Cst. Campbell.

[12] From our review of the record and the trial judge’s reasons, we are not persuaded that the trial judge’s analysis was tainted by a misapprehension of the evidence or that she took a piecemeal approach to the complainant’s evidence. The trial judge grappled with the critical aspects of the complainant’s evidence, considered the defence submissions on that evidence, and found that the complainant’s evidence was believable and persuasive. There is no basis to disturb the trial judge’s careful findings about the complainant’s credibility.

[13] For these reasons, the appeal is dismissed.

“J.C. MacPherson J.A.” “G. Pardu J.A.” “S. Coroza J.A.”