R. v. A.I.B., 2023 ONCA 557

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20230821 DOCKET: C68165

Hourigan, Brown and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

A.I.B. Appellant

Counsel: Sonya Shikhman and Kathryn Doyle, for the appellant Stephanie A. Lewis, for the respondent

Heard: August 16, 2023

On appeal from the conviction entered on July 9, 2019 and the sentence imposed on January 14, 2021 by Justice Anastasia M. Nichols of the Ontario Court of Justice, and from the dismissal of an application to re-open the trial dated September 15, 2020.

REASONS FOR DECISION

[1] The appellant was tried on three counts of assault and sexual assault, involving two complainants. Both complainants testified, although there was no cross-count use of the complainants’ evidence as no similar fact application was brought. The appellant testified in his defence.

[2] The trial judge acquitted the appellant on the count of sexual assault against the complainant H.N.

[3] The trial judge convicted the appellant on the counts of assault and sexual assault involving the complainant V.A. and imposed a sentence of 2.5 years’ incarceration, less 22.3 months’ worth of deductions to account for pre-trial custody, bail, and COVID-19 considerations.

[4] The appellant appeals his conviction. Counsel advised the appellant was abandoning his sentence appeal.

[5] At the hearing of the appeal, we dismissed the conviction appeal with reasons to follow. These are those reasons.

[6] On his conviction appeal, the appellant advances two grounds of appeal.

FIRST GROUND OF APPEAL: ERROR IN THE TRIAL JUDGE’S W.(D.) ANALYSIS

[7] The appellant submits the trial judge erred in her application of the principles in R. v. W.(D.), [1991] 1 S.C.R. 742.

The evidence and the trial judge’s reasons

[8] The appellant emphatically denied that he had assaulted or sexually assaulted V.A. The trial judge commenced her W.(D.) analysis by holding that she did not believe the appellant’s evidence. Nevertheless, she did not completely reject the appellant’s evidence. As she had done in considering the evidence in the count involving H.N., the trial judge went on to consider whether the appellant’s evidence on the V.A. matters gave rise to a reasonable doubt about his guilt.

[9] To determine that issue, the trial judge stated that she would consider the appellant’s evidence “in the context of the evidence as a whole” and determine whether “the strength of the Crown’s case is such that it leads to a rejection of [the appellant’s] account.” The trial judge then proceeded to consider the credibility, and then the reliability, of V.A.’s evidence. She reviewed that complainant’s evidence in some detail. The trial judge found V.A.’s evidence to be “compelling and credible with a large amount of detail supporting the reliability of the evidence.” She then held:

Looking at [the appellant’s] evidence in the face of the Crown’s case relating to the charges pertaining to [V.A.], I find that this is a case where the strength of the Crown evidence is such that it compels a rejection of [the appellant’s] account in relation to the sexual assault and assault.

Specifically, in relation to the sexual assault, I find that [the appellant] would have known that [V.A.] was not consenting to intercourse based on her words and demeanour while the act was taking place. I find all incidents where [V.A.] testified to assaultive behaviour on the part of [the appellant] to be credible and reliable. In the context of the whole of the evidence relating to [V.A.], I did not believe [the appellant’s] denials, nor did they leave me with a reasonable doubt.

Analysis

[10] The appellant contends the trial judge misapplied this court’s decisions in R. v. J.J.R.D., 2006 ONCA 40088, leave to appeal refused, [2007] S.C.C.A. No. 69 and R. v. C.L., 2020 ONCA 258, regarding the application of W.(D.) principles.

[11] We are not persuaded that she did.

[12] The appellant acknowledges that in J.J.R.D. this court stated, at para. 53, that an explanation for a trial judge’s outright rejection of an accused’s evidence was not limited to a rejection “based on a problem identified with the way the accused testified or the substance of the accused’s evidence”; a rejection could also be based “on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting, credible evidence.” In C.L., this court accepted, at para. 30, that J.J.R.D. endorsed the proposition that a proper conviction could be arrived at even where exculpatory testimony had no obvious flaws if the Crown mounts a strong prosecution, but held that the “considered and reasoned acceptance” language of J.J.R.D. should not be included in a W.(D.) jury direction: see also R. v. C.G., 2021 ONCA 809, 158 O.R. (3d) 721, at paras. 53‑54. However, in C.G. this court pointed out, at para. 54, that J.J.R.D. does not provide “an answer to the failure of a trial judge to advert to exculpatory evidence that stands unchallenged” and that “[t]he failure to advert to such evidence, and to address it, means that the acceptance of the complainant’s evidence is neither considered nor reasoned.”

[13] The appellant contends that the principles in J.J.R.D. and C.L. only provide a trial judge with a sufficient basis to explain her rejection of an accused’s evidence where the record contains confirmatory evidence that has a “credibility enhancing effect” on a complainant’s evidence. No doubt the presence of evidence confirmatory of a complainant’s testimony will make it easier for a trial judge to reach a considered and reasoned acceptance of a complainant’s evidence, but such evidence is not a necessary condition for the application of the J.J.R.D. principle. While in the present case the trial judge did not rely on the existence of confirmatory evidence, she found support for her acceptance of the complainant’s evidence in the strength of its reliability. That was open for her to do.

[14] Nor is this a case where the trial judge failed to advert to exculpatory evidence that stood unchallenged. The trial judge’s reasons disclose that it was the challenge made to the appellant’s denials that prompted her to employ the explanatory approach described in J.J.R.D., at para. 53.

[15] Finally, the appellant argues that the trial judge committed the same analytical error identified by the Saskatchewan Court of Appeal in R. v. Van Deventer, 2021 SKCA 163, 407 C.C.C. (3d) 291. We are not persuaded that she did.

[16] In Van Deventer, the trial judge accepted the complainant’s evidence as she was both credible and reliable. The trial judge then continued: “The necessary corollary of this conclusion is that I do not believe and I reject [the accused’s] denial”: at para. 10 (emphasis added). The Saskatchewan Court of Appeal held, at para. 15, that “the trial judge’s statement that she must reject and disbelieve [the accused’s] testimony as a necessary corollary of finding [the complainant] to be credible and reliable, combined with no other analysis of his credibility, represents an error that necessitates a new trial.”

[17] While the Saskatchewan Court of Appeal held that it would be a legal error for a trial judge to make an automatic finding of a lack of credibility for an accused once the testimony of a complainant is found to be credible and reliable, that court emphasized, at para. 25, that:

A finding of credibility and reliability regarding a complainant’s testimony about the alleged conduct can be the reason for rejecting the testimony of an accused, when considered in the context of the entirety of the evidence. As long as a trial judge is mindful of the burden of proof and the principles from W.(D.), they can reject the accused’s evidence on the basis that the complainant’s evidence is accepted to the extent that it leaves no room for reasonable doubt. [Emphasis added.]

[18] In the present case, the trial judge did not fall into the error identified in Van Deventer. The trial judge explained at length why she found the complainant’s evidence to be compelling, credible, and reliable. She made it clear that her assessment of the appellant’s credibility was performed in the context of the strength of the Crown’s case; it was not the automatic result – or “necessary corollary” – of her acceptance of the complainant’s credibility.

[19] Accordingly, we are not persuaded that the trial judge applied an incorrect burden of proof to the counts against the appellant that involved V.A.

SECOND GROUND OF APPEAL: RE-OPENING THE TRIAL

Facts

[20] Following his conviction, the appellant applied to re-open the trial, or declare a mistrial, on two main grounds:

First, the decision of this court in C.L. was released after his conviction. The appellant argued that C.L. had altered the law regarding the application of W.(D.) principles as set out in J.J.R.D., a decision upon which the trial judge had relied. Accordingly, the trial should be re-opened and the appellant’s culpability decided based upon the new law in C.L.;
Second, the complainant’s victim impact statement delivered just before the sentencing hearing disclosed material inconsistencies with her trial evidence that compelled either a mistrial or a re-opening of her evidence.

[21] The trial judge denied the appellant’s application.

Analysis

[22] There is no dispute that in deciding the application the trial judge properly identified the governing principles as those articulated by this court in Regina v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.) and R. v. Griffith, 2013 ONCA 510:

The power of a trial judge to vacate an adjudication of guilt after a trial and before a sentence is imposed should only be exercised in exceptional circumstances and where its exercise is clearly called for, which should occur only in very rare cases: Lessard, at p. 73; Griffith, at paras. 12 and 23; and
Where an application to re-open is based upon new evidence, the trial judge is required to apply the same test from Palmer v. The Queen, [1980] 1 S.C.R. 759 that an appellate court would apply when an appellant seeks to introduce fresh evidence on his appeal: Griffith, at para. 21.

[23] On appeal, the appellant does not challenge the trial judge’s conclusion, expressed at para. 15 of her reasons on the re-opening application (“Re-opening Reasons”), that the circumstances of C.L. were distinguishable from those in the present case and, therefore, the decision in C.L. was not applicable to the trial judge’s conviction findings.

[24] However, the appellant does challenge the trial judge’s conclusion that the appellant had not satisfied some of the Palmer criteria, specifically that the victim impact statement did not contain material inconsistencies that were relevant to a decisive issue or on which cross-examination could expect to have affected the ultimate result at trial.

[25] We note that the appellant has not filed the victim impact statement as part of the appeal record. As a practical matter, the absence of the victim impact statement from the record before us significantly impedes the appellant’s ability to advance this ground of appeal. We are therefore left with reviewing the trial judge’s Re-opening Reasons to discern whether the trial judge was clearly wrong or her decision was based on an erroneous principle.

[26] We see no such error. The trial judge was familiar with all the evidence that had been adduced during the trial and the live issues at play regarding the appellant’s potential culpability. In the circumstances, the trial judge’s conclusions regarding the second and fourth Palmer requirements are entitled to deference.

[27] Accordingly, we are not persuaded by this ground of appeal. We see no basis for appellate interference in the trial judge’s dismissal of the appellant’s re-opening application.