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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20230717 DOCKET: COA-22-CR-0359

Fairburn A.C.J.O., Simmons and Trotter JJ.A.

BETWEEN

His Majesty the King Respondent

and

T.K.N. Appellant

Counsel: T.K.N., acting in person Chris Rudnicki, appearing as duty counsel Erica Whitford, for the respondent

Heard: July 5, 2023

On appeal from the convictions entered on October 14, 2021 and the sentence imposed on March 25, 2022 by Justice Robert L. Maranger of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was charged with sexual interference, sexual assault and assault. He pleaded guilty to assault at the opening of trial. Following a judge alone trial, he was convicted of sexual interference and the sexual assault charge was conditionally stayed pursuant to Kienapple v. R., [1975] 1 S.C.R. 729. The trial judge sentenced the appellant to six-years and six-months’ imprisonment for sexual interference and three months’ concurrent for assault.

[2] The appellant appeals from his conviction for sexual interference and seeks leave to appeal sentence. For the reasons that follow, we dismiss the appeal.

The Conviction Appeal

Duty counsel’s submissions

[3] On behalf of the appellant, duty counsel argued that Crown counsel at trial engaged in improper cross-examination of the appellant by making suggestions to him that he found the complainant attractive and was attracted to her, lines of questioning that this court has found to be irrelevant or otherwise impermissible: see R. v. F.E.E., 2011 ONCA 783, 108 O.R. (3d) 337, at paras. 68 to 70. The trial judge included the appellant’s denials of the trial Crown’s suggestions in his summary of the evidence. Subsequently, in finding the appellant guilty of the sexual offences, the trial judge said,

The [appellant’s] testimony and denials were not believable, nor did they raise a reasonable doubt about his involvement in a sexual relationship with the underage complainant. [Emphasis added.]

Although the appellant’s testimony was rife with other denials, most prominently his denial of a sexual relationship with the complainant, duty counsel submits that we cannot be satisfied that the trial judge did not rely on the appellant’s denials improperly adduced through impermissible cross-examination to make his findings of guilt.

[4] We do not accept these submissions. While we accept that, in general, questioning an accused person about whether they consider a complainant “attractive”, or whether they were “attracted to” the complainant at the time of the events, is impermissible, we are not satisfied that the questions posed to the appellant were improper in the particular circumstances of this case.

[5] The general prohibition against such questioning arises from the fact that such questions are often ambiguous and unfair, i.e., it may be unclear whether the suggestion is that the complainant is pretty – or that she is sexually attractive – leaving an accused person unsure how to answer and vulnerable to being described as evasive if clarification is requested. Further, and in any event, in many instances, there can be no right answer to such a question for an accused: R. v. F. (M.), 2009 ONCA 617, at paras. 20 to 23. More importantly, because the questions are often rooted in stereotypical assumptions, they often seek answers that are irrelevant, or which may be rooted in impermissible propensity reasoning. For example, such stereotypical assumptions may include: only “attractive” females are sexually assaulted, or finding another person sexually attractive makes sexual assault more likely: F.E.E. at para. 68; F. (M.), at paras. 24-25. It also has a tendency to confuse the fact that sexual assault is a crime of violence, not a crime of passion. Nonetheless, there can be exceptions to the general prohibition: F.E.E., at para. 69; R. v. M. (G.), 2011 ONCA 503 at paras. 62 to 64.

[6] In this case, the events at issue occurred when the appellant was around 26 years old and the complainant 13 or 14. They became acquainted while the appellant was mentoring a girls' basketball group. The appellant began staying in a bedroom in the basement of the complainant’s home after he was evicted from his apartment. The complainant testified to developing a sexual relationship with the appellant over time, which culminated in them having intercourse on five or six occasions in a period of about three to four months. The complainant then ended the relationship. The complainant's older sister testified about conversations in which the appellant confirmed his sexual relationship with the complainant. The appellant testified and denied any sexual relationship with the complainant.

[7] In a cross-examination that spans approximately 160 pages of transcript, the Crown put the following three sets of questions to the appellant:

Q: I’m going to suggest to you that you became very close to [the complainant], and you knew she had a crush on you, and I’m going to suggest to you that you were attracted to her? A: No, sir. Q: No? Did you find her physically attractive? A: No, sir. Q: You did not? A: No. Q: So, I’m going to suggest to you that the reason you were, as you presented yourself that night, as you’ve described yourself, is because you were jealous the [the complainant] was out with older guys? A: No. Q. Because you were attracted to [the complainant]. Agree or disagree? A. I disagree. Q. And because you had been having sex with her? A. No. Q. And you’d agree with me that you’re a guy who sometimes lets your emotions get the better of you. Correct? A. One hundred per cent. Q. And I’m going to suggest to you that, you know, you developed an attraction to [the complainant]? A: No, sir. Q. And I’m going to suggest to you that you pursued a sexual relationship with her? A: No sir. [Emphasis added.]

[8] Read in the context of the underlying allegation that the appellant engaged in an inappropriate, but not “physically forced” [^1], relationship with an underage young teenager, the impugned questions are neither irrelevant nor based on stereotypical assumptions. Rather, they are squarely rooted in the complainant’s narrative of the events and relevant to her assertions that she and the appellant developed feelings for one another, and that he instigated and then continued their sexual relationship. This was not a case of stranger sexual assault nor a case involving adults capable of giving their consent. Considered in light of the particular circumstances of this case, we are not satisfied that these three brief sets of questions created any unfairness to the appellant.

[9] We note, as well, that defence counsel at trial did not object to the relevance or propriety of these questions. Although by no means determinative, the lack of objection reinforces our conclusion that the trial Crown’s questions were not improper in all the circumstances of this case.

[10] That said, we reiterate this court’s counsel to prosecutors at para. 70 of F.E.E. to seek a prior ruling from the trial judge before pursuing such lines of questioning.

[11] In any event, read in context, this line of questioning does not appear to have played any material role in the trial judge's reasoning process.

The appellant’s submissions

[12] On his own behalf, the appellant argued that the trial judge erred by failing to take account of the difficult circumstances under which he was required to present his evidence and by engaging in uneven scrutiny of his evidence compared to the Crown witnesses.

[13] In particular, the appellant submits he was handicapped in presenting his evidence both because of being required to testify via Zoom and because of mental health challenges. Further, he submits the trial judge was overly critical of his evidence while overlooking the complainant’s inability to recall dates, times, and locations; leading questions by the Crown; hearsay evidence adduced by the Crown and flaws in the complainant’s sister’s evidence.

[14] We do not accept these submissions. The appellant has not identified anything specific in the record or adduced evidence to demonstrate that he was in any way handicapped in presenting his evidence at trial. Further, we note that he was represented by counsel. Based on our review of the record, the trial was conducted in a manner that was procedurally fair to all participants.

[15] Further, we are satisfied that the trial judge gave ample reasons for rejecting the appellant’s evidence based on inconsistencies in his testimony. The trial judge also explained why he found the complainant and her sister to be credible witnesses despite imperfections in their evidence relating to location, dates, and times. We see nothing in the trial judge’s reasons or the record capable of demonstrating that the trial judge applied a different standard of scrutiny to the evidence led by the Crown and that which was led on the appellant’s behalf. Nor has the appellant identified any other material flaws in the evidence adduced at trial. Defence counsel at trial objected appropriately when the complainant testified about things she had been “hearing”. The appellant has not identified any leading questions by the Crown to which objection was taken at trial.

The Sentence Appeal

[16] The appellant submits the sentence was unduly harsh, particularly in light of the fact that he had no prior criminal record.

[17] We do not accept this submission. In addition to the facts of this case, which involved five to six acts of intercourse by a 26-year-old man with a 13/14-year-old young teenager and the profound harm suffered by the victim and her family, the trial judge identified the following aggravating factors:

• the offence involved a breach of trust – the appellant ingratiated himself into a family and used his position as a welcome member of the family to commit sexual offences against a 13/14-year-old family member;
• the offence involved grooming;
• the offence took place in the family home where a child should feel safe; and
• the complainant lost her virginity as a result of the appellant's actions.

[18] In crafting an appropriate sentence, the trial judge was mindful of the mitigating factors present including the appellant’s status as a first offender and the difficulties he experienced in childhood as set out in the pre-sentence report.

[19] Particularly in light of the guidance provided in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, concerning the need to recognize the wrongfulness of, and harm caused by, sexual offences against children, we are not persuaded that the sentence imposed by the trial judge was demonstrably unfit. As Friesen makes clear, mid-single digit penitentiary terms for sexual offences against children are normal and substantial sentences can be imposed even where there is only one victim: Friesen, at para. 114. Nor do we see any error in principle in the trial judge’s reasons for sentence.

Disposition

[20] Based on the foregoing reasons, the conviction appeal is dismissed, leave to appeal sentence is granted, but the sentence appeal is dismissed.

“Fairburn A.C.J.O” “Janet Simmons J.A.” “Gary Trotter J.A.”

[^1]: The trial judge stated he had a reasonable doubt concerning “whether any of the sexual activity between the [appellant] and the complainant was ever physically forced upon her or performed with the [appellant’s] specific knowledge that she wasn’t consenting”.