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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 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. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sutherland, 2016 ONCA 674

DATE: 20160913

DOCKET: C59603

Watt, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hopeton Sutherland

Appellant

Hopeton Sutherland, acting in person

Russell Silverstein, duty counsel

Michael Bernstein, for the respondent

Heard: July 14, 2016

On appeal from the convictions entered by Justice Nancy Kastner of the Ontario Court of Justice on October 22, 2014, with reasons reported at 2014 ONCJ 551, and sentence, dated October 31, 2014.

Tulloch J.A.:

A. Introduction

[1] This appeal stems from events occurring around May 3, 2014, when it is alleged that the appellant assaulted the complainant and forced her to have intercourse with him at knife point. The appellant was convicted of assault causing bodily harm, sexual assault with a weapon, theft under $5,000, and breach of probation. He was sentenced to six years imprisonment.

[2] The appellant now appeals against his conviction and sentence. With the assistance of duty counsel, he argues that the trial judge misunderstood the evidence and erred by taking judicial notice of certain evidence concerning the complainant’s underwear and by misapplying the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (U.K. H.L.).

[3] For the reasons that follow, I would dismiss the appeal.

B. BACKGROUND

(1) Facts

[4] At the time of the relevant events, the appellant, Hopeton Sutherland, was approximately 45 years old. He was a crack user believed to be running a crack house or flop house in the Mississauga area. He abused alcohol and helped others get drugs.

[5] The complainant, R. G., was approximately 36 years old. She was an essentially homeless woman as her common law husband had recently been imprisoned. She squatted between a couple of crack houses, friends’ homes, the park and a mall. She stayed mostly at a crack house occupied by a man who went by the name, “The General”. Like the appellant, the complainant was also a crack user who abused alcohol. She drank several beers each day and would take oxycodone by prescription when she was unable to get crack.

[6] In the winter preceding the relevant events, the complainant visited the appellant’s home with her husband. The appellant lived in a townhouse shared with several other men and occupied another man’s room on the upstairs level. During the visit, the appellant told the complainant and her husband that if they had “smoke”, they could do it at his house.

[7] By May 2014, the complainant was going to the appellant’s house every day to get crack and to smoke it there. The appellant would call a dealer and get the drug.

[8] On May 2, 2014, the complainant went to the appellant’s home to smoke cigarettes and make some noodles. She decided to leave to get money to purchase crack and beer. Sometime between 7:00 p.m. and 9:00 p.m., she returned to the home with beer and $40 for the crack. The appellant and two other women were also there. The appellant took her money and cell phone to call a dealer and then left for about 15 minutes to pick up the drugs. All four smoked their own drugs and the complainant drank four or five beers. She was high.

[9] After the two other women left, the complainant said that she did not want to stay and that she was going out for cigarettes. She testified that the appellant held her, saying she could not go and locked the door. After that, he threw her down.

[10] According to the complainant, she went outside but the appellant followed her. He proceeded to push her again, banging her head against a wall or door frame and causing an injury to the side of her head. The injury bled and required stitches. Photographs of the injury were also taken and entered into evidence at trial.

[11] The complainant testified that the appellant then took her back inside. She was scared and intimidated to return, but no physical force was used. She asked him to return her cell phone because she wanted to call the police, but he refused.

[12] Given her fatigue, the injury and the appellant’s refusal to let her leave, the complainant testified that she lay down on couch cushions scattered on the floor. It was approximately 2:00 a.m. on May 3, 2014. According to the complainant, the appellant proceeded to pick up a knife from the dresser next to them. He told her that he wanted to sleep with her and pulled down her pants. She said she did not want to sleep with him and pushed him. Notwithstanding her objections, however, the appellant proceeded to have intercourse with her on the floor of his room, extorting compliance with the knife pointed at her throat. He was not wearing a condom and ejaculated after four or five minutes. He was very angry, high on crack and drunk.

[13] According to the complainant, the appellant then proceeded to put the knife to the side. She waited until she could sneak out in order to make her escape. She eventually fled, but the appellant chased her with a beer bottle as she went outside and followed her down to the road. The complainant saw another woman and asked her to call the police, but she did not.

[14] The complainant testified that she ultimately decided to return to the home of “The General” to figure out her next steps. She did not sleep or clean up. She also did not change her clothing. She called a friend, Mr. Jervis Evans, and asked him to come with her to report the assaults to the police.

[15] Mr. Evans testified that he received a call from the complainant around 4:00 a.m. on May 3, 2014. He did not immediately go to see her, but waited until sometime later that afternoon.

[16] When Mr. Evans arrived, the complainant made her way to the mall and eventually the nearby community police station. At the station, Police Constable Tonkin took her report with the assistance of a Punjabi-speaking officer. He observed her injury and had officers take her to the hospital. Police Constable Tonkin knew the complainant and noted that she was visibly upset whereas she was normally personable.

[17] Police Constable Herren attended at the hospital to take the complainant’s statement. She was tired and upset. Her underwear was seized and later found to contain the appellant’s semen.

[18] Although the complainant said that she consented to a sexual assault kit, she was too tired at the time to have one done. She was asked to go back to the hospital the next day to complete the kit, but did not show up at the appointed time to get a ride from the police. As a result, no sexual assault kit was ever completed.

[19] After leaving the hospital on May 3, 2014, the complainant went with the police to the station to have photographs of her injury taken. The police photographs show a new shirt the hospital provided for her.

[20] Around 9:45 p.m. that same evening, the police attended at the appellant’s residence and arrested him.

(2) The Trial Proceedings

[21] The appellant was tried by judge alone and convicted of assault causing bodily harm, sexual assault with a weapon, theft under $5,000, and breach of probation. He was sentenced to six years imprisonment.

[22] The trial judge began her detailed reasons for conviction by noting that this was a case which turned on the issue of credibility. The appellant did not testify. The complainant did. The appellant argued that the complainant was not an honest witness and that, even if she were generally credible, the contradictions and inconsistencies in her evidence rendered it so unreliable to create a reasonable doubt as to his guilt. The trial judge disagreed.

[23] The trial judge noted that there was no dispute that the complainant had an opportunity to make observations on the night of the assault and during the early morning hours of May 2 and 3, 2014. That said, the trial judge acknowledged that the complainant’s compromised sobriety required careful scrutiny of her evidence. Moreover, she stated that the complainant’s addictions could also affect her memory of the events.

[24] The trial judge considered several alleged inconsistencies in the complainant’s evidence, noting that some matters alleged to be inconsistent were established to be consistent throughout, and that many others were inconsequential or had been explained adequately. In the trial judge’s view, the core of the complainant’s allegations was consistent: she wanted to leave, but the appellant would not let her; she attempted to go, but he pushed her down and caused her to hit her head; and she said no to sex, but he pointed a knife at her throat and forced her to have unprotected vaginal sex.

[25] In addition, the trial judge made reference to three categories of evidence that corroborated the complainant’s evidence. First, physical evidence observed at the hospital and police station corroborated the complainant’s testimony that the appellant had pushed her and injured her head. Photographic exhibits also depicted the injury, which looked relatively fresh.

[26] Second, the appellant’s semen was found in the complainant’s underwear that was seized by police from her on May 3, 2014. The trial judge noted that the complainant testified that she had had consensual sex with the appellant six to nine days prior to the incident, but not within the week prior. The appellant’s trial counsel asked the judge to take judicial notice that the semen could have been left from this prior sexual contact, but the trial judge declined to do so, noting that neither party had asked the complainant whether she had changed her underwear since the consensual contact and that such reasoning was entirely speculative and without foundation. The trial judge further stated that, consistent with Browne v. Dunn, the appellant should have made this suggestion to the complainant if relying on it for an innocent explanation to give her an opportunity to comment. In the trial judge’s view, the presence of the appellant’s semen in the complainant’s underwear was strongly corroborative of her complaint.

[27] Finally, the third category of evidence that corroborated the complainant’s evidence was the testimony of Mr. Evans. The trial judge explained that Mr. Evans’ testimony was generally corroborative of the support the complainant sought from him in following through with the complaint.

[28] The trial judge was ultimately satisfied that the Crown had met its burden of proof on all the essential elements of each charge. In reaching this conclusion, she noted that she subjected the complainant’s testimony to careful scrutiny and found her to be a credible witness. Bearing in mind the totality of the evidence, the trial judge was convinced beyond a reasonable doubt that the appellant was guilty of all four charged offences. She accordingly convicted him and sentenced him to six years imprisonment.

C. ANALYSIS

[29] The appellant appeals against his conviction and sentence. Aided by duty counsel, he argues that the trial judge “misunderstood” the evidence. According to the appellant, the trial judge, in looking for corroboration of the complainant’s evidence, erred in finding that the presence of the appellant’s semen in the complainant’s underwear could serve as strong corroboration of the complainant’s story. Given this error, the appellant contends that appellate intervention is warranted and a new trial is required.

(1) The Conviction Appeal

[30] The appellant’s conviction appeal centres on the evidence that his semen was found in the complainant’s underwear seized by the police on the day of the incident. The appellant argues that this evidence could not act as corroboration for the complainant’s story in the absence of other evidence to explain its meaning. More specifically, he contends that the trial judge effectively took judicial notice that the complainant would have washed or changed her underwear since her last consensual sexual contact with the appellant. Furthermore, he submits that the trial judge misapplied the rule in Browne v. Dunn in her analysis of the underwear evidence. In the appellant’s view, this alleged misunderstanding of the evidence warrants quashing his convictions.

[31] I would reject this submission.

[32] At the outset, I note that, in determining whether the Crown met its burden of proof, all of the evidence must be considered together, rather than assessing individual items in isolation: R. v. Gostick (1999), 1987 174 (ON CA), 37 C.C.C. (3d) 53 (Ont. C.A.), at p. 59. Moreover, the trial judge’s appreciation of the evidence, including her assessment of the complainant’s credibility and her use of confirmatory evidence, is entitled to deference on review:see R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 121; R. v. Robinson, 2009 ONCA 626, 254 O.A.C. 171, at para. 39.

[33] In this case, the trial judge was acutely aware of the potential frailties in the complainant’s evidence and the need to subject it to careful scrutiny. After considering potential inconsistencies in the evidence, she examined the evidence capable of confirming or supporting it. One category of this confirmatory evidence was the fact that that the appellant’s semen was found in the complainant’s underwear that was seized by the police on the day of the incident. The parties had filed an agreed statement of fact that the semen was, in fact, the appellant’s. In discussing the evidence, the trial judge wrote:

[81] The complainant’s evidence is that she did not have sex with Mr. Sutherland within the week prior to the incident, or on that day, except by force at the time of the alleged offences. Her evidence stands, and is not contradicted by any other evidence on this point. Thus, the presence of Mr. Sutherland’s semen in Ms. R. G.’s underwear is some evidence capable of corroborating her evidence of sexual contact. The issue of proof of lack of consent is separate. However, the fact that the complainant previously had sexual contact with the defendant is inadmissible for the purpose of supporting the inference that by reason of the sexual nature of that activity, the complainant is more likely to have consented to the activity that forms the subject-matter of the offence or is less worthy of belief (see Criminal Code s.276).

[82] Mr. Zbarsky argues that semen has no “shelf life”, and that the Court ought to reject its presence as proof of the offence. He posits that it could be left on her underwear from a week before and asks the Court to take judicial notice of such. Although the burden rests on the Crown, neither party asked the complainant if she changed her underwear and such reasoning is entirely speculative in these circumstances and without scientific or other foundation. The Crown established the chain of continuity of the underwear. In my view, the defence should have made the suggestion to the witness if relying on it for an innocent explanation, so that the witness would have an opportunity to comment. This is a classic application of the principle in Browne v. Dunn. It is a requirement that the witness be confronted on an important, significant or essential matter.

[83] The presence of Mr. Sutherland’s semen located on Ms. R. G.’s underwear, which she was wearing at the time of the assault, is strongly corroborative evidence of her complaint. [Footnotes omitted.]

[34] I see no merit to the appellant’s argument that the trial judge’s analysis is flawed because, according to him, she took judicial notice that the complainant would have washed or changed her underwear since her last consensual sexual contact. A fair reading of her reasons reveals that she did not, as the appellant contends, take judicial notice of any such fact. Rather, in the absence of supporting evidence, she rightly rejected the appellant’s request to take judicial notice that the semen may have been left on her underwear from the prior consensual sexual contact the week before.

[35] The threshold for judicial notice is high. A court can take judicial notice of a fact if it is: (1) so notorious or generally accepted that it is not the subject of debate among reasonable persons; or (2) capable of immediate demonstration by reference to sources of indisputable accuracy: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 53. In this case, that threshold was not met and the trial judge accordingly declined the appellant’s request to take judicial notice of his speculative suggestion that his semen may have been left on the complainant’s underwear from their prior consensual sexual contact. The rejection of a request to take judicial notice of one thing, however, does not amount to taking judicial notice of another.

[36] In my view, the trial judge rightly considered the evidence of the appellant’s semen on the complainant’s underwear as relevant and confirmatory of her complaint. As this court has observed, an item of evidence is relevant if it renders the fact or facts it seeks to establish slightly more or less probable than the fact or facts would be without the evidence: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 204. It does not become irrelevant simply because it can be interpreted in more than one way or because multiple inferences can be drawn from it. Rather, in such circumstances, it falls to the trier of fact – in this case, the trial judge – to decide on the strength or weight the evidence will receive in light of all the other evidence: see R. v. Underwood, 2002 ABCA 310, 320 A.R. 151, at para. 25; see also Luciano, at para. 205.

[37] Here, the trial judge considered the evidence of the appellant’s semen in the complainant’s underwear and determined that it strongly corroborated her complaint. I see no error in this regard and reject the appellant’s suggestion that, in doing so, the trial judge effectively took judicial notice that the complainant must have washed or changed her underwear since her last consensual sexual contact with the appellant.

[38] Similarly, I reject the appellant’s argument that appellate intervention is warranted because the trial judge misapplied the rule in Browne v. Dunn. That rule

… establishes that if counsel seeks to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the opportunity to address such evidence during cross-examination. The nature of the contradictory evidence must at least be put to the witness during cross-examination by the counsel who plans to lead it. [R. v. McCaroll, 2008 ONCA 715, 238 C.C.C. (3d) 404]

[39] The rule in Browne v. Dunnis one of fairness, aimed at preventing witnesses from being “ambushed” by not giving them an opportunity to state their position with respect to later evidence which contradicts them on an essential matter: R. v. Dexter, 2013 ONCA 744, 313 O.A.C. 226, at paras. 17-18; R. v. Verney (1997), 1993 14688 (ON CA), 87 C.C.C. (3d) 363 (Ont. C.A.), at p. 376. The rule’s application is not fixed, but lies within the sound discretion of the trial judge and depends on the circumstances of each case: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 80; R. v. Paris (2000), 2000 17031 (ON CA), 150 C.C.C. (3d) 162 (Ont. C.A.), at para. 22. As this court explained in Quansah, at para. 101:

Whether the rule in Browne v. Dunn is offended by failure to cross-examine on a specific matter in a particular case cannot be determined in the abstract. Each case is different. The rule is flexible, not rigid. It is rooted in fairness. Reasonable people may differ about on which side of the line a failure to cross‑examine on a particular point falls. A trial judge should be accorded considerable deference on a decision about its application. A trial judge has a reserved seat at trial. We have a printed record. [Emphasis added.]

[40] In this case, the trial judge concluded that the appellant’s failure to put to the complainant that she may have still been wearing the underwear from her prior consensual sexual contact the week before with him fell within the ambit of Browne v. Dunn. The appellant did not question the complainant in this regard, but rather requested that the trial judge take judicial notice that his semen may have been left on the seized underwear from the prior consensual sexual contact, a fact that would make it less probable that the complainant had been sexually assaulted on the day in question and thus undermine her credibility. The trial judge denied the appellant’s request and stated that, if the appellant intended to rely on an argument that the complainant had not changed her underwear, he should have put it to her so that she would have an opportunity to comment.

[41] In my view, it was within the trial judge’s discretion to find that the rule in Browne v. Dunn applied in this case. At no time did the appellant put to the complainant the allegation that his semen was left on her underwear from their prior consensual sexual contact and that she had not changed her underwear since then. As a result, she had no opportunity to respond to the allegation in any meaningful way.

[42] In any event, the trial judge did not make any negative finding against the appellant as a result of his failure to put the allegation to the complainant. Rather, she found that the evidence of his semen in the underwear was relevant and confirmed the complainant’s evidence. This falls squarely within the trial judge’s function to weigh the evidence, make findings of fact and credibility, and decide the case.

[43] Moreover, the evidence of the appellant’s semen must be assessed in the context of all the other evidence. The complainant’s viva voce testimony was confirmed not only by the semen evidence, but also physical and police evidence of her injury and the testimony of Mr. Evans. Notably, temporal photographs of the complainant’s head and scalp area taken by the police depicted an injury which looked relatively fresh and was consistent with the complainant’s testimony that the appellant had pushed her down and caused her to smash her head. Police Constables Tonkin and Herren also contemporaneously observed both the complainant’s head injury, which required three or four stiches, and staining on her shirt, which appeared to be blood. In addition, Mr. Evans’ testimony generally confirmed the support she said she sought from him in following through with the complaint.

[44] Simply put, the appellant has failed to show that the trial judge erred in any way warranting appellate intervention. The complainant was consistent on the essence of the allegations, which were buttressed by confirmatory evidence and supported the convictions. I would accordingly dismiss the conviction appeal.

(2) The Sentence Appeal

[45] Although the appellant indicated in his notice of appeal that he also sought to appeal his sentence, the issue was not pressed at the hearing and duty counsel conceded that the sentence imposed fell within the appropriate range. I agree. The sentence is not demonstrably unfit and reflects no error in principle or disproportionate emphasis on any relevant factor.

D. DISPOSITION

[46] For these reasons, I would dismiss the appeal.

Released: “DW” SEP 13 2016

“M. Tulloch J.A.”

“I agree. David Watt J.A.”

“I agree. S.E. Pepall J.A.”