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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20240123 DOCKET: C70571
Doherty, MacPherson and Gillese JJ.A.
BETWEEN
His Majesty the King Respondent
and
A.A. Appellant
Counsel: Charles Spettigue, for the appellant Nicole Rivers, for the respondent
Heard: January 8, 2024
On appeal from the convictions entered on March 16, 2022 by Justice Bernd Zabel of the Ontario Court of Justice.
REASONS FOR DECISION
[1] The appellant was convicted of one count of assault and one count of sexual assault. He received an effective sentence of three years. The appellant appeals conviction and sentence. We are satisfied that the appeal should be dismissed.
[2] This was a straightforward case. The appellant and the complainant were the only witnesses. The complainant testified that she was assaulted by the appellant, her husband, in the early morning of October 12, 2019. The complainant also testified that the appellant sexually assaulted her in the residence on October 14, 2019.
[3] The appellant testified and denied any physical assault on the morning of October 12, 2019. He further testified that he and the complainant had consensual sexual intercourse at their residence on October 14, 2019.
[4] The verdicts turned on the trial judge’s assessment of the credibility of the complainant and the appellant, bearing in mind as the trial judge expressly did, the proper application of the burden of proof as set down in R. v. W.D., [1991] 1 S.C.R. 742.
[5] The appellant advanced several grounds of appeal, many of which challenged different aspects of the trial judge’s reasons. The appellant also alleged that the trial judge erred in refusing to order production of certain CAS records under s. 278 of the Criminal Code and erred in dismissing the appellant’s motions seeking a stay of the charges under s. 11(b) of the Charter.
[6] The court called on the Crown to respond only to some of the appellant’s arguments. Those arguments alleged the trial judge had failed to consider certain documentary evidence proffered by the defence at trial. These reasons address only those arguments.
The Assault
[7] The complainant testified that she and the appellant argued during the evening of October 11, 2019. He left the residence to go to work as an Uber driver. According to the complainant, the appellant returned between 12:30 a.m. and 1:00 a.m. on the morning of October 12, 2019. She recalled looking at the clock beside her bed and noting that it was 12:30 a.m. when the appellant arrived home, and 1:00 a.m. after the assault was completed.
[8] The complainant testified the appellant came into the bedroom looking for his laptop computer. He poked her on the side and hit her with a closed fist on the leg. She responded by hitting the appellant with an open hand on the shoulder. He proceeded to punch and slap her. She yelled, “help me.” The appellant covered her mouth and grabbed her by the hair. Someone knocked on the door and the assault ended. The complainant was certain that the assault occurred between 12:30 a.m. and 1:00 a.m.
[9] The complainant went to the doctor about 10 days after the assault. He noted bruising on her arm and notified the CAS. The police took a statement from the complainant on October 23, 2019, and a further video statement on November 1, 2019. The complainant was cross-examined on certain inconsistencies between her statements and her testimony.
[10] The appellant testified that on October 11, 2019, he and the complainant had a “discussion” about the complainant borrowing money from a friend earlier in the day. The appellant testified that he then went to work as an Uber driver, returning home at 8:50 p.m. He left to go back to his job at 9:30 p.m. and did not return home until 2:15 a.m. The complainant was asleep in the children’s bedroom and he did not wake her up. The appellant testified that there was no confrontation with the complainant when he arrived home and he did not assault her.
The Sexual Assault
[11] The complainant testified that on the following Monday, October 14, 2019, she told the appellant she wanted a divorce. They discussed various financial matters relating to the divorce. He appeared to be taking notes. The complainant went into the bathroom and when she returned, the appellant showed her the piece of paper he had been writing on. It said, “I love you, I cannot stay without you.”
[12] According to the complainant, the appellant then pulled her into the bedroom. She was upset. The appellant was taking pictures of her and speaking to her in a mocking tone. He told her they were going to have sex. She refused and tried to leave the bedroom. The appellant pulled her onto the bed, took her pants off, climbed on top of her and initiated sexual intercourse. He said to her, “You are a slave – like a slave to me.” The sexual intercourse continued until the appellant ejaculated. The complainant got up from the bed and fled to the bathroom.
[13] The appellant testified that he arrived home from work at about 3:30 p.m. on October 14, 2019. The complainant was angry and acting in an irrational manner. He tried to calm her down. He suggested they have sex as a way to “calm the matter down.” The complainant said no.
[14] According to the appellant, he and the complainant then started to talk about a divorce and the arrangements that would have to be made. The complainant remained visibly upset, telling the appellant she wanted to go to the washroom to wash up and pray. When she returned to the bedroom, the appellant was able to calm her down. She removed her clothing, except her bra, and got into the bed. The appellant got into bed beside her and she climbed on top of him. They had sexual intercourse, changing positions at least once during that intercourse. Both climaxed. The complainant kissed him and went for a shower. The appellant testified that two days later the complainant demanded that he leave the home.
The Reasons for Judgment
[15] The trial judge’s reasons are brief. After referring to the controlling legal principles, he summarized the evidence of the complainant and turned to an assessment of her credibility. He described her evidence as “compelling” and “credible and reliable”. The trial judge gave several reasons for finding the complainant to be a credible witness. He referred to her demeanour during questioning, her responsive answers to cross-examination, her explanations for certain inconsistencies between her testimony and earlier statements, her legitimate language difficulties, and her obvious emotional distress when describing the relevant events.
[16] The trial judge then moved to the evidence of the appellant. After reviewing the substance of that evidence, he described the evidence as “straining credulity”, rambling and non-responsive to cross-examination. The trial judge referred to and adopted Crown counsel’s submissions in closing argument, particularly as they related to the appellant’s evidence. The trial judge described the Crown’s submissions as “fair and accurate”, referring specifically by page references in the transcript to portions of the Crown’s submissions referrable to the appellant’s credibility.
The Documentary Evidence
[17] Counsel for the appellant contends that the defence filed certain documents which strongly supported the appellant’s evidence that the alleged assault on October 12, 2019 never occurred, and that the complainant was lying. Counsel submits that the trial judge failed entirely to consider those documents in his reasons. Counsel argues that the failure to do so constitutes a misapprehension of the evidence, and a failure to give adequate reasons. On either view, the convictions cannot stand.
[18] The relevant documents are found in exhibits 4, 5, 6 and 7. Exhibits 4 and 5 are Uber related documents. The appellant contends that those documents place the appellant at work for Uber from 9:30 p.m. on October 11, 2019, until 2:15 a.m. on October 12, 2019. Counsel submits they provide a “detailed” description of the appellant’s whereabouts during that time period and render the complainant’s evidence that she was assaulted between 12:30 a.m. and 1:00 a.m. by the appellant demonstrably false.
[19] The Crown responds that the Uber documents do not provide anything close to a detailed account of the appellant’s whereabouts throughout the relevant time period. Instead, the documents refer only to times at which customers placed orders with Uber, either for pickups or the delivery of material. The documents say nothing about where the appellant was, particularly after midnight on October 12, 2019.
[20] The Crown also established on cross-examination that there were other Uber documents that could have provided details of the orders, including pickup and delivery times, and the length of time it took to make a delivery, or take a customer to the desired location. These documents were not tendered by the defence.
[21] Exhibit 7 is what is referred to as a “Google timeline”. The appellant submits that the timeline confirmed the Uber records and, in particular, confirmed that the appellant was working for Uber until 2:15 a.m. on the morning of October 12, 2019.
[22] The Crown submits that the documents, like the Uber documents, do not show the appellant’s whereabouts. The timeline is not continuous. Indeed, the only specific point in time noted for October 12, 2019, was 12:36 a.m. That datapoint placed the appellant in the immediate vicinity of his own residence at 12:36 a.m. This evidence is, if anything, consistent with the complainant’s testimony.
[23] The Crown also established that the Google timeline could be edited, although the appellant testified he did not edit the document. Ultimately, the Crown claimed that even taken at face value, the Google timeline was unhelpful and offered no evidence from which the inference could be drawn that the appellant was not at home some time between 12:30 a.m. and 2:30 a.m. on October 12, 2019.
[24] Exhibit 6 was a series of text messages exchanged by the complainant and the appellant between 12:00 a.m. and 1:00 a.m. on October 12, 2019. The complainant acknowledged giving and receiving these text messages. The defence contended that the text messages showed the assault could not possibly have occurred between 12:30 a.m. and 1:00 a.m., as alleged by the complainant. The defence also maintained that the text messages showed the complainant was not asleep immediately prior to the assaults as she had testified.
[25] The Crown did not challenge the authenticity of the text messages, and all but conceded that they showed the complainant was mistaken about the exact time of the assault. The Crown submitted, however, that the mistake was immaterial and understandable, given that the complainant was testifying about an event that occurred in the early morning hours immediately after the appellant woke her. The Crown further contended that it made no difference to the assessment of the complainant’s credibility that the assault she described occurred shortly after 2:15 a.m. when the appellant said he came home, rather than between 12:30 a.m. and 1:00 a.m. as the complainant had mistakenly testified.
Analysis
[26] A failure to consider material evidence can constitute a misapprehension of the evidence: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (ONCA), at 218. As with other alleged misapprehensions of evidence, the appeal court must examine the trial judge’s reasons using a “functional, context-specific approach”: R. v. R.E.M., 2008 SCC 51, at para. 15. The reasons must be considered in light of the evidence adduced at trial, the live issues, and the submissions of the parties: R.E.M., at para. 35; R. v. J.C., 2023 ONCA 101, at para. 9. Nor does a failure to consider evidence automatically constitute a misapprehension of the evidence. The impact of a failure to consider certain evidence depends on the potential significance of that evidence to the resolution of the live issues at trial. As observed in R. v. Smith, 2021 SCC 16, at para. 2:
Determining whether a misapprehension of evidence has caused a miscarriage of justice requires that the appellate court assess the nature and extent of the error and its significance to the verdict.
[27] Counsel for the Crown and the defence in their closing arguments laid out their positions with respect to the documents. The trial judge made no reference to the documents in his reasons. The absence of any reference, at least to the Uber and Google documents (Exhibits 4, 5 and 7), supports the inference that the trial judge accepted the Crown’s submission that those documents could not materially assist.
[28] A review of those documents confirms the merits of the Crown’s position. At best, the documents might present snapshots of the appellant’s whereabouts on the evening of October 11 and the early morning of October 12, 2019. They also indicate that he was working for Uber during that timeframe. The documents do not, however, put the lie to any part of the complainant’s description of the assault, including her evidence about the timing of the assault.
[29] In our view, the Uber and Google documents (Exhibits 4, 5 and 7) were treated as inconsequential by the trial judge. This treatment reflects no misapprehension of the evidence.
[30] The trial judge also made no reference to the text messages exchanged by the complainant and the appellant between 12:00 midnight and 1:00 a.m. (Exhibit 6). These documents, unlike the Uber and Google documents, do contradict part of the complainant’s evidence. The assault could not have occurred between 12:30 a.m. and 1:00 a.m., as the complainant testified. The text messages could also support the inference that the complainant was deliberately lying when she testified she had looked at the clock, both when the appellant arrived home, and when the assault ended.
[31] In closing submissions, the Crown acknowledged that the text messages showed that the complainant was wrong about the time of the assault. The Crown argued that the timing of the assault was not an essential element of the offence, and that the complainant’s mistake as to the time was not material to an assessment of her credibility. The trial judge made no reference to this argument in his reasons, although, as indicated earlier, he did refer to the Crown’s submissions as “fair and accurate”.
[32] The trial judge should have expressly addressed the effect of Exhibit 6 on the credibility and reliability of the complainant’s evidence. The document showed the complainant was wrong about a material matter in her evidence. Because the trial judge did not specifically address the impact of the text messages on his assessment of the complainant’s evidence, it is left to this court to place that evidence in the broader context of the trial and determine what, if anything, the trial judge made of the complainant’s misstatement as to the time of the assault.
[33] Having looked at the entire record, we are satisfied that the trial judge accepted the Crown’s submissions in respect of the text messages. Not only, as the Crown argued, was the timing not an essential element of the alleged offences, the specific time of the assault did not matter to the overall integrity of the complainant’s narrative about the assault. The veracity of her story remained intact whether the assault occurred between 12:30 a.m. and 1:00 a.m., or shortly after 2:15 a.m. In other words, the complainant’s error about the time of the offence could not logically have done any damage to the overall credibility of her allegation that the appellant assaulted her.
[34] Finally, having regard to the strong credibility findings made in favour of the complainant by the trial judge, it is not realistic to suggest that even if the trial judge failed to consider the text messages, he would have reached a different credibility assessment had he considered those messages.
Conclusion
[35] The appeals from conviction and sentence are dismissed.
“Doherty J.A.”
“J.C. MacPherson J.A.”
“E.E. Gillese J.A.”
[1] The appellant did not make any submissions on the sentence appeal, and in oral argument effectively abandoned the sentence appeal.
