Court of Appeal for Ontario
Date: 2025-03-20
Docket: C70941
Coram: Paul Rouleau, L. Favreau, L. Madsen
Between:
His Majesty the King (Respondent)
and
K.M. (Appellant)
Appearances:
Nick Whitfield, for the appellant
Adrianna Mills, for the respondent
Heard and released orally: March 13, 2025
On appeal from the convictions entered by Justice Alan D. Cooper of the Ontario Court of Justice on April 20, 2022.
Reasons for Decision
[1] The appellant appeals his convictions for sexual assault and for choking the complainant to render her incapable of resisting. He was sentenced to four years’ imprisonment. He raises two grounds of appeal:
He argues that the trial judge’s reasons are insufficient in that they are conclusory, fail to explain his credibility findings and do not address the defence theory advanced at trial that the complainant had a motive to fabricate.
He submits that the trial judge failed to apply W.(D)., and that he in effect staged a credibility contest between the complainant and the defence witness, Ms. Camm. Ms. Camm testified that she understood from her discussions with the complainant that the sexual encounter between the complainant and the appellant had been consensual.
[2] We disagree.
[3] Although we acknowledge that the trial judge’s reasons are far from ideal, in our view, read contextually the reasons explain the basis for conviction. It was accepted that the sexual contact had occurred, and the only issue at trial was consent. The trial judge found that the complainant gave consistent evidence and was a credible witness. The trial judge also addressed the evidence of Ms. Camm, the witness for the defence, that contradicted the evidence of the complainant. In his reasons, the trial judge quoted extensively from the evidence of Ms. Camm, as well as evidence from other sources, including the Crown reply witness. The evidence he cited demonstrated that Ms. Camm’s evidence was inconsistent in material respects. It would have been preferable for the trial judge to have explicitly linked these passages to his finding that she was “entirely unreliable” and “was lying to provide the appellant with a defence.” Viewed in context, however, his rejection of her exculpatory evidence is adequately explained.
[4] As for the defence’s attack on the complainant on the basis that she had a motive to fabricate, the trial judge referred to the cross-examination of the complainant, where it was suggested that she had fabricated the assault in order to create sympathy such that her father would agree to take her into his home. The trial judge was clearly alive to this defence theory, which, if true, would undermine the complainant’s evidence.
[5] By accepting that the complainant’s evidence was reliable, the trial judge also accepted the complainant’s denial of fabrication. As the Crown pointed out, the complainant testified that she had reported the sexual allegations to Ms. Camm, and it was this that triggered her eviction and the need to find new premises. The trial judge’s acceptance of the complainant’s evidence, together with the timing of her disclosure of the assault, adequately explains the basis for the trial judge’s rejection of the fabrication allegation.
[6] Finally, we find no error in the trial judge’s application of the principles in W.(D). The trial judge referred to W.(D.), and, as noted above, made two distinct credibility findings: 1) he rejected Ms. Camm’s evidence on the basis that it was inconsistent and conflicted with other evidence, and 2) he accepted the complainant’s evidence due to its consistency and strength. No more was needed. He did not, as suggested by the appellant, stage a credibility contest.
[7] For these reasons, the appeal is dismissed.
Paul Rouleau J.A.
L. Favreau J.A.
L. Madsen J.A.
Publication Ban
[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, RSC 1985, c C-46.