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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2018-02-14

Docket: C62082

Panel: Hoy A.C.J.O., MacPherson and Rouleau JJ.A.

Between:

Her Majesty the Queen Respondent

and

Stanley Ross Williams Appellant

Counsel:

• Howard L. Krongold, for the appellant
• Rebecca De Filippis, for the respondent

Heard: January 23, 2018

On appeal from: The convictions entered on December 2, 2015 and the sentence imposed on May 2, 2016 by Justice B.W. Abrams of the Superior Court of Justice

Decision

MacPherson J.A.:

A. Introduction

[1] The appellant, Stanley Ross Williams, known as Ross Williams, was convicted of several counts of sexual assault, assault, and break and enter to commit an indictable offence. The convictions were based on the testimony of two of the appellant's former domestic partners who said that he had subjected them to repeated physical violence, including sexual violence.

[2] The principal issue at the trial was consent. Both complainants said that they had many consensual encounters with the appellant, but that they did not consent to some of the acts described in their testimony.

[3] The appellant did not testify. He did not dispute that the sexual acts took place. However, he advanced a theory that the complainants, ashamed or regretful of their time with the appellant, unconsciously or unintentionally convinced themselves of their non-consent when in reality they had been willing participants.

[4] The trial judge convicted the appellant on seven of the ten counts in the indictment. He imposed a global sentence of nine years' imprisonment.

[5] The conviction appeal raises issues of the trial judge's treatment of inconsistencies in one complainant's testimony and similar fact evidence across counts in the indictments. The sentence appeal raises the issue of totality.

B. Facts

(1) The Parties and Events

[6] The complainant K.Q. met the appellant in late 2005 or early 2006. They were working together for the same company. They started living together in a home in February or March 2006.

[7] According to K.Q., her relationship with the appellant went well initially. However, the appellant became stressed with his job and his mood affected how he treated her. They began arguing. The appellant became violent. He hit her, pushed her against the wall, and pushed her down the stairs.

[8] K.Q. also testified that on multiple occasions the appellant sexually assaulted her. He tied her up, penetrated her with objects like a chair leg and sex toys, and inserted his fist into her vagina.

[9] K.Q. testified that she lived with the appellant for about 18 months to two years. Eventually, she moved out and rented an apartment with her daughter. She testified that the appellant changed the locks on her apartment for her when she moved in. On two or three occasions, she woke up in her new apartment to the appellant having sex with her. She told him to stop and get off her, but he would just laugh.

[10] K.Q. met the second complainant, B.C., at a local Tim Horton's. They became "very good friends". After K.Q. and the appellant split up, B.C. moved in with the appellant. A few months later they separated. Then they resumed their relationship and began living together again.

[11] According to B.C., on many occasions the appellant put his fist into her vagina and would not stop when she told him it hurt, forced her to perform oral sex until she vomited, and used a dildo on her vaginally and anally to the point of bleeding.

[12] The relationship between B.C. and the appellant ended in mid-2011.

[13] Eventually, both complainants went to the police and the appellant was charged with nine counts relating to his conduct towards them. A tenth charge was laid with respect to a third complainant.

(2) The Trial Judge's Decision

[14] During the trial, the trial judge dismissed a charge of assault causing bodily harm on K.Q. and a charge of assault with a weapon (a firearm) on K.Q. At the conclusion of the trial, the trial judge acquitted the appellant of a single charge of sexual assault on a third complainant.

[15] On the other seven charges, assault, assault with a weapon (a wooden dowel), sexual assault, sexual assault with a weapon (a wooden dowel), [1] break and enter and commission of the indictable offence of sexual assault (all against the complainant K.Q.), and assault and sexual assault (both against the complainant B.C.), the trial judge convicted the appellant.

[16] The trial judge found that both complainants were credible and reliable witnesses. He concluded that neither complainant consented to some of the sexual activity with the appellant, including the penetration of their vaginas with his fist. He also concluded that the appellant assaulted both complainants. He rejected the appellant's assertion that there was collusion between the complainants with respect to their testimony. Finally, the trial judge found that there was evidence from each witness, including their assertion that the appellant penetrated their vaginas with his fist, that confirmed the testimony of the other.

[17] The trial judge imposed a global sentence of nine years' imprisonment. With respect to the five convictions relating to the complainant K.Q., he imposed a five year sentence. With respect to the two convictions relating to the complainant B.C., he imposed a four year sentence. He then concluded:

In the aggregate, Mr. Williams is sentenced to nine years in the penitentiary. Considering the principle of totality, in my view, the aggregate sentence is just and appropriate in all of the circumstances.

C. Issues

[18] I would frame the issues in this fashion:

(1) Did the trial judge fail to resolve material inconsistencies in the complainant K.Q.'s evidence?

(2) Did the trial judge err by finding that the evidence of each complainant was admissible as cross-count similar fact evidence?

(3) Did the trial judge impose a manifestly unfit sentence by giving no weight to the totality principle?

D. Analysis

(1) Inconsistencies in One Complainant's Evidence

[19] The appellant's principal submission on the appeal is that the trial judge ignored the many and serious inconsistencies in the complainant K.Q.'s evidence. The appellant provides many examples. The following are some of them.

[20] First, K.Q. testified that the appellant kept a silver gun in the basement. She claimed that he would bring up the gun on "numerous occasions just I guess to let me know it was there." K.Q. claimed in-chief that she had seen the gun on two occasions, once in the basement in a clear box with a lock on it, and on another occasion when she was forced to perform "oral sex" on the barrel of the gun.

[21] On cross-examination, K.Q. admitted that she had been specifically asked by police about the appellant having weapons, and told police that the appellant had "talked about a gun in the basement" but that "it has never been seen" and that she did not believe that there was a gun. K.Q. said that her police statement was truthful. She conceded that a gun being put in her mouth would be a "life or death" situation and "it's not something you would forget." She suggested that she might have "buried" the memory.

[22] At the close of the Crown's case, the Crown requested that the count in relation to the forced "oral sex" of the firearm be dismissed, saying "[t]hat count … based on the evidence before you, is not sustainable." The trial judge dismissed the charge.

[23] Second, in her testimony K.Q. was initially quite clear in saying that her wrist was broken when the appellant forcibly removed her from the house:

Q. And what was the reason that you had to attend at a hospital?

A. My wrist had been broken.

Q. Your wrist had been broken. How did that happen?

A. I was being forcibly removed from the house.

Q. Who did that?

A. Ross.

[24] In cross-examination, K.Q. admitted that at the preliminary inquiry she had testified that she had been pounding on the appellant's locked front door with her hand and kicking the door ("I forced my way in … banging on the door, hitting it, kicking it").

[25] At the close of the Crown's case, the Crown requested that the count of assault causing bodily harm in relation to K.Q.'s wrist injury be dismissed. The trial judge dismissed the charge.

[26] Third, at the trial K.Q. testified that after she and the appellant separated, the appellant helped her move into a new apartment with her daughter. According to K.Q., the appellant changed the lock on the apartment for her, kept a key for himself, and used it to enter the apartment and initiate sex with her while she was asleep. She testified that she had asked the landlord to change the locks after this happened, but nothing was done because she couldn't afford to pay for a lock change. However, at the preliminary inquiry the appellant testified that she had not contacted the landlord about a lock change.

[27] Fourth, at the trial K.Q. testified that she complied with the appellant's demands about unwanted and painful sexual activity because he threatened her in various ways, including telling her he would say things to the Children's Aid Society ("CAS") that would cause her to lose custody of her young daughter:

Q. And what did he threaten you with or what did he say?

A. About beating me or me losing my daughter. Everything was either he was going to beat me or I was going to lose my daughter.

K.Q. also testified that she had never spoken to CAS about the appellant's threats to speak to CAS about her.

[28] However, at the preliminary inquiry K.Q. said the opposite: she had contacted CAS "numerous times", including about the appellant's threats.

[29] Fifth, at trial K.Q. testified that she would sometimes cry and tell the appellant to stop, but agreed that at the preliminary inquiry she said "the only time I remember saying no is to performing the oral sex with the gun."

[30] It is fair to say that a major part of the defence cross-examination of K.Q. at the trial related to alleged inconsistencies in her evidence, both inside the trial itself and the juxtaposition of her trial and preliminary inquiry testimony.

[31] Moreover, in a relatively succinct closing submission at the trial, defence counsel immediately framed the central issue as inconsistencies in the complainants' evidence:

There were many frailties and differences in their evidence between the initial police reports, evidence heard at the preliminary hearing and evidence heard at trial.

[32] Defence counsel then specifically addressed the alleged inconsistencies in K.Q's evidence relating to the gun, wrist and change of lock examples set out above.

[33] Against this factual backdrop relating to the evidence of the complainant K.Q., I turn to the legal issue. In my view, a good summary of the relevant principles relating to the assessment of a witness' credibility is contained in R. v. A.M., 2014 ONCA 769 at paras. 12-14:

… [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she said on other occasions, whether or not under oath: R. v. G.(M.) (1994), 93 C.C.C. (3d) (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

… A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M.(R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31. [Emphasis added.]

[34] The trial judge in this case said nothing about the inconsistencies in K.Q.'s evidence. Specifically, he did not respond to the examples of inconsistencies discussed by defence counsel in her closing submission. The only reference he made to K.Q.'s inconsistencies was in this passage of his reasons:

I find as a fact that Ms. [K.Q.] was a credible and reliable witness. When it was reasonable for her to concede where she was wrong in her evidence, she did so without hesitation. I do not find that any inconsistencies in Ms. [K.Q.'s] evidence make the main points of her testimony less believable or reliable. [Emphasis added.]

[35] Although the defence approach to the complainant B.C.'s evidence was markedly different, in tone and content, to its approach to the complainant K.Q.'s evidence, the trial judge treated them in identical fashion. In his separate discussion of the offences relating to B.C., he said:

I find as a fact that Ms. [B.C.] was a credible and reliable witness. When it was reasonable for her to concede where she was wrong in her evidence, she did so without hesitation. I do not find that any inconsistencies in Ms. [B.C's] evidence make the main points of her testimony less believable or reliable. [Emphasis added.]

[36] The appellant submits that these identical single sentence comments about the two complainants' evidence are so terse, and inappropriately identical given their evidence and defence counsel's very different challenges to it, as to amount to nothing more than 'boilerplate' reasoning. I am inclined to agree.

[37] In any event, in light of the prolonged attention to K.Q's inconsistencies by defence counsel in her cross-examination and the emphasis and specificity of her treatment of this issue in her closing submission, the trial judge's treatment of this crucial issue falls well short of the standard set out by this court in A.M. The number and nature of K.Q.'s inconsistencies required the trial judge to grapple with them in some way.

[38] The Crown concedes that there were some inconsistencies in K.Q.'s evidence but labels them "peripheral" and says that "[a]t most, they went to Ms. [K.Q.'s] general credibility."

[39] I do not accept this submission. For starters, general credibility is the umbrella under which a witness' credibility on specific issues is considered. Moreover, the evidence about inconsistencies was material in the sense that it related to specific offences with which the appellant was charged. The inconsistencies about K.Q.'s knowledge of the appellant's gun, broken wrist and lock change were all directly linked to specific counts in the indictment.

[40] For these reasons, I conclude that the trial judge did not, in the language of A.M., "address and explain how ... he has resolved major inconsistencies in the evidence of material witnesses", in this case the complainant K.Q.

[41] This conclusion means that the convictions on the offences relating to the complainant K.Q. cannot stand. The remaining question is whether this conclusion affects the validity of the two convictions relating to the complainant B.C. The appellant contends that it does.

[42] I disagree. The appellant concedes that there were no major inconsistencies in B.C.'s evidence and that this was not the focus of defence counsel's challenge to her testimony. Accordingly, the core of the trial judge's reasons supporting the two convictions relating to her evidence remains largely unchallenged and, in my view, legally sound.

(2) Cross-Count Similar Fact Evidence

[43] The trial judge allowed an application by the Crown to permit the evidence of K.Q. and B.C. to be used as cross-count similar fact evidence. The appellant submits that the trial judge erred in acceding to the Crown's application.

[44] In my view, in light of the structure and content of the trial judge's reasons, this issue does not have any real import. In his reasons, the trial judge considered the counts in the indictment against each complainant separately. He did this in the first 78 pages of his reasons. In the final two pages of his reasons, he turned to the issue of similar fact evidence and concluded:

In my view, in addition to being independent, there was evidence from each witness that did however confirm the testimony of the other.…

[45] Even if I were prepared to say that this conclusion was an error, the reality is that, overwhelmingly, the trial judge convicted the appellant on the two sets of charges based on a completely separate analysis of the evidence relating to each complainant.

(3) Sentence

[46] In light of my proposed disposition of the conviction appeal, the sentence appeal must be allowed in part.

[47] If the appellant's appeal of the convictions relating to K.Q. is allowed, the five year sentence for those offences must be set aside. The appellant, although asserting that the four year sentence for the two convictions relating to the complainant B.C. is at the high end of the range (the trial judge acknowledged this in his reasons), does not contend that it is unfit.

[48] The appellant's sole issue on the sentence appeal is totality relating to the global nine year sentence. In light of my proposed disposition, that issue disappears.

E. Disposition

[49] I would allow the conviction appeal on the offences relating to the complainant K.Q. and order a new trial in relation to those offences. I would dismiss the conviction appeal on the convictions relating to the complainant B.C. I would allow the sentence appeal and reduce the custodial portion of the sentence to four years' imprisonment.

Released: February 14, 2018

"J.C. MacPherson J.A."

"I agree. Alexandra Hoy A.C.J.O."

"I agree. Paul Rouleau J.A."

Footnote

[1] At the appeal hearing, both parties conceded that the conviction on this charge could not stand. Although K.Q. testified that the appellant had assaulted her with a wooden dowel, she did not testify that he had sexually assaulted her with it.