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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-06-12

Docket: C64808

Panel: Lauwers, Pardu and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Edward Noftall Appellant

Counsel:

• Nader R. Hasan, duty counsel
• Edward Noftall, in person
• Leslie Paine, for the respondent

Heard: June 4, 2018

On appeal from: The conviction entered on September 8, 2016 and the sentence imposed on December 12, 2017 by Justice Brian W. Abrams of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Introduction

[1] The appellant was convicted of sexual assault of his neighbor and sentenced to two years less a day imprisonment, followed by three years' probation. He argues that the trial judge made many errors and that the conviction should be set aside. He also seeks leave to appeal from the sentence.

Findings of Fact by the Trial Judge

[2] We begin with a review of the findings of fact made by the trial judge.

[3] The complainant lived in an apartment next door to the appellant. She was in the process of moving out and her own apartment was nearly empty. She went next door to the appellant's apartment to become reacquainted with his dog, as she had agreed to look after the animal for the appellant. The appellant invited her to sleep at his apartment, and assured her he would not bother her.

[4] She sat on the couch and played with the dog. The appellant was smoking marijuana and drinking beer after beer. The complainant had taken evening medication prescribed for her before going over to play with the dog and began to feel drowsy and wobbly. She told the appellant she was going home, but he insisted she should sleep at his place. She acquiesced and lay down on a chaise chair and curled up with a blanket tucked under her shoulder. She wanted to go home, but was nervous about what the appellant might do, as she thought he was drunk and stoned. She was half asleep. The next thing she knew, the accused was standing over her and forcing intercourse on her. She told him it hurt and told him to stop. He continued until he ejaculated.

[5] The complainant had no memory of what happened afterwards. She attributed this to illnesses from which she suffered. She had a vague memory of going to the Smith Falls hospital. Hospital records show that she arrived in the emergency department at 3:08 in the morning. She asked for the morning after pill, but refused to be subjected to a sexual assault examination at the hospital because of previous traumatic experiences at that hospital.

[6] The complainant testified that she was fully present when the appellant raped her, and that she told him "no". The trial judge found that the complainant's evidence was "unequivocal, unshaken and uncontroverted." He was satisfied beyond a reasonable doubt that intercourse had occurred and that the complainant had not consented.

Honest but Mistaken Belief in Consent

[7] The appellant argues that the trial judge erred in concluding that there was no air of reality to mistaken belief in consent:

In the present case there is not even a mere assertion that the accused held an honest but mistaken belief in consent. There is no evidence to support the assertion….

[8] Testimony by an accused is not a prerequisite to an argument that the accused lacked the mental state necessary to support conviction. However, there must be some evidence to show that the "complainant communicated consent to engage in the sexual activity in question" and that the accused believed she had communicated that consent: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 46. That evidence may be derived from the circumstances surrounding the event and the behavior of the involved parties. Here, however, there is no evidence of any words, conduct or circumstance suggesting consent by the complainant and no evidence that the appellant believed that the complainant communicated consent. Under these circumstances, the trial judge did not err in concluding that there was no air of reality to any suggestion of honest but mistaken belief in consent.

Undue Emphasis on the Complainant's Demeanor

[9] Trial counsel spent considerable time cross-examining the complainant on her history of mental illness. She suffered from bi-polar disorder, post-traumatic stress disorder and dissociative disorder. The purpose of this examination was to suggest that her evidence might be unreliable.

[10] The trial judge addressed these suggestions in his reasons:

Dealing next with the complainants admitted mental health issues. First, I observe nothing in the complainant's demeanor while she was testifying to give me concern that her mental illness diminishes, or negatively affects her ability to give credible, and reliable evidence. The complainant was certainly assertive by times in answering certain questions. That said, there was no manifestation of dissociative behavior during her evidence. The complainant listened to the question, and gave thoughtful, articulate and honest answers in my view.

[11] This was appropriately responsive to the approach taken by defence counsel and does not reflect an overemphasis on demeanor evidence. The trial judge did not agree that because the complainant suffered from the mental illnesses described, she was not a reliable or credible witness. There is no basis to interfere with that conclusion, to which deference is owed: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26.

Unreasonable Verdict

[12] There was uncontradicted evidence before the trial judge, that he found credible, that the appellant had sexual intercourse with the complainant without her consent. A trier of fact could reasonably have reached the conclusion that the appellant was guilty of sexual assault. The trial judge dealt with defence arguments said to raise doubt about the complainant's credibility. For example, that the complainant withdrew an unrelated complaint of domestic violence against a partner, and that the complainant sat in close proximity to the appellant at a public tenants' meeting after the alleged assault. The trial judge did not find these to be factors undermining her credibility. The trial judge also dealt with the complainant's refusal to undergo a sexual assault examination at the hospital and her statements at the hospital, as recorded on the hospital records, as follows:

If anything, the medical record corroborates the complainants subjective view at the time of the sexual activity in question, and her evidence at trial….

There is no basis to conclude that the trial judge's findings of credibility were unreasonable.

Prior Consistent Statement

[13] The appellant submits that the trial judge used the complainant's prior consistent statements improperly, as self-corroboration. The hospital records containing notes about statements made by the complainant were admitted on consent, however, there was no agreement expressed on the record as to the purpose for which those records were admitted, except perhaps, to avoid calling the doctor.

[14] The handwritten records seem to record the following:

Had intercourse last night, consensual?

− She didn't want to but didn't say no. She didn't want him to think she was leading him on.

− She said it was painful.

− She's not sure if he heard or ignored her say that.

[15] At trial, defence counsel contrasted her evidence at trial that she said "no" with the indication in the records that she "didn't say no."

[16] The trial judge dealt with this in his reasons:

Further, notwithstanding what is recorded in Exhibit One, the complainant maintained at trial that she told the accused that "it hurts" and "stop". Admittedly, Exhibit One is less clear. There is a question mark beside the word "consensual". Moreover, the complainant reportedly "didn't say no". However there was also a record of the complainant reporting that "she didn't want to", which I find goes to her actual, subjective consent, and is consistent with her evidence at trial. The complainant also reportedly said that it, "the intercourse", was "painful", that "she is not sure if he heard, or ignored her say that". Thus, these aspects of the contemporaneous note are consistent with the complainant's evidence at trial that the accused was hurting her as he was penetrating her with his penis, and that she said so, whether he heard it, or simply ignored her.

[17] A prior inconsistent statement may undermine a witness's credibility. Prior consistent statements are not admissible to enhance a witness's testimony. The fact that a narrative may have been repeated before trial does not make it more credible.

[18] Here, the trial judge's observations about the consistency of the hospital records with the complainant's evidence were directed to address the defence argument that the statements were inconsistent and should undermine her credibility. He was entitled to make that observation: R. v. J. (M.A.), 2015 ONCA 725, 25 C.R. (7th) 187, at para. 46. See also: R. v. Warren, 2016 ONCA 104, 26 C.R. (7th) 390, at para. 12. We do not read his reasons as impermissible oath helping.

Sentence Appeal

[19] The appellant submits that the trial judge did not consider mitigating factors. He expressly did so. The sentence was fit, and there was no error in principle. There is no basis for this court to intervene.

Disposition

[20] Accordingly, for these reasons, the appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

"P. Lauwers J.A."

"G. Pardu J.A."

"Grant Huscroft J.A."