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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-07-06

Docket: C63565

Panel: Sharpe, Brown and Paciocco JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

D.A. Appellant

Counsel

Peter Copeland, for the appellant

Michael Perlin, for the respondent

Hearing

Heard: June 29, 2018

On appeal from: The conviction entered on October 19, 2016 by Justice W.D. Newton of the Superior Court of Justice, sitting with a jury, with reasons reported at 2016 ONSC 6521.

Reasons for Decision

THE FACTS AND THE ISSUES

[1] D.A. appeals his conviction following a judge-alone trial on one count of sexual assault, contrary to Criminal Code, R.S.C. 1985, c. C-46, s. 271.

[2] He and the complainant were co-workers working on temporary contracts as nurses in a northern Ontario community. The events leading to D.A.'s conviction occurred when the complainant was visiting his apartment after work for drinks and company.

[3] The complainant testified that as she was leaving, D.A. overpowered her, pinned her on a bed, and touched her sexually, without her consent. She fought him off and left.

[4] D.A. testified and provided a starkly different account. He claimed that the complainant initiated kissing and sexual touching with him. He put an end to it after thinking about his girlfriend. He said the complainant left, uneventfully.

[5] The trial judge convicted D.A., applying the principles of R. v. W.(D.), [1991] 1 S.C.R. 742 and R. v. J.J.R.D. (2006), 218 O.A.C. 37. He found that based on a considered and reasoned acceptance of the complainant's evidence, the Crown proved the offence beyond a reasonable doubt, and that D.A.'s testimony did not leave him with a reasonable doubt.

[6] In arriving at this conclusion, the trial judge found that there was evidence supporting the complainant's version. He found that a tear to the complainant's bra was "some corroboration", and that evidence that the complainant's glasses were left at D.A.'s apartment supported her claim that there had been a struggle.

[7] The trial judge also relied upon a text message exchange the day after the visit, which he characterized as "telling." In that exchange the complainant said, "what u did last night was not cool". "I told u in Kash that one night and last night and u didn't listen to me at all last night". D.A. replied "My bad … One night in Kash?"

[8] There was also photographic evidence of a small mark on the complainant's neck where she testified D.A. bit or pinched her.

[9] D.A. appeals his conviction, arguing that the trial judge's acceptance of the complainant's evidence was not "considered and reasoned" because it was tainted by error. Specifically, D.A. claims that:

A. The trial judge found that the complainant had deleted text messages and therefore her evidence had to be given increased scrutiny, but then failed to apply that increased scrutiny.

B. The trial judge failed to give appropriate weight, without explanation, to contradictory testimony the complainant gave about the duration of unwanted touching under her shirt that occurred shortly after she arrived at the apartment.

C. The trial judge discounted an implausibility argument offered by the defence by relying on the complainant's understandable lack of recall about the details of the physical struggle, when the complainant did not assert a lack of recall.

D. The trial judge improperly treated the torn bra as independent corroboration, when the relevance of the tear depended upon the complainant's testimony that the bra was torn during the sexual assault.

E. The trial judge prevented defence counsel from pursuing an appropriate line of cross-examination about the complainant's claimed dissatisfaction with her video statement, by mistakenly ruling that a question asked in cross-examination was repetitive.

ANALYSIS

[10] We do not give effect to these grounds of appeal for the reasons that follow.

A. The Deleted Text Messages

[11] It was for the trial judge to determine the weight to be given to the deletion of the text messages. He concluded that notwithstanding that deletion, the complainant's evidence could be accepted beyond a reasonable doubt. It is not for this court to second-guess a determination concerning the complainant's credibility absent an error of law or an overriding error of fact: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 24. We reject this ground of appeal.

B. Testimony About Touching Under the Shirt

[12] The trial judge was alive to the defence position that the complainant's testimony about the duration of the unwanted touching under her shirt was inconsistent. The trial judge did not find this challenge to the evidence to be compelling. That was his decision to make.

[13] The trial judge could have provided a more complete explanation for discounting the importance of the inconsistency, but it was not a legal error to have failed to do so. His reasoning path is apparent on the record. The inconsistency relied upon, if it exists at all, is slight. In this context, the trial judge's reference to it as an "apparent inconsistency" reflects his finding that any contradiction that might exist is unimportant.

[14] In any event, this is not the kind of important and central inconsistency that the trial judge was obliged to address in his reasons. Reasons for judgment need not be perfect. They need only be sufficient for the functional purpose of the case, and "should be considered in light of the deference afforded to trial judges on credibility findings": R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; and R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 10-13. We see no error here.

C. The Implausibility Argument

[15] We do not accept that the trial judge erred by discounting the implausibility argument. In her examination-in-chief, the complainant testified that D.A. pinned her arms with his legs and put his hand under her shirt, but during cross-examination she said that she did not know exactly how her arms were pinned and that she was focused on manipulating her body. We appreciate that during cross-examination she was describing the later stages of the alleged struggle. Nonetheless, she was explaining the difficulty in describing relative body positions during a struggle. In these circumstances, the trial judge was entitled to rely on the complainant's lack of perfect recall about the details of the physical struggle to reject an implausibility argument that depended upon a precise description of relative body positions.

[16] In any event, even if the complainant was held to her evidence-in-chief about their body positions – with his knees on her arms – the theory that it would be implausible for D.A. to put his hand under her shirt at the same time is simply not sufficiently compelling to support a finding by this court that the trial judge's failure to act on the implausibility argument undermines the considered and reasoned basis for his decision to accept the complainant's evidence.

D. The "Some Corroboration" and the Torn Bra

[17] We are not persuaded that the trial judge erred by treating the torn bra as "some corroboration of the complainant's version" of events. We do not understand the trial judge, in using the term "some corroboration", to be suggesting that the technical legal standards of corroboration had been met. He was communicating no more than that the torn bra provides support for the allegation. We say this because sexual assault is not an area of the law where technical corroboration is required: see, e.g., F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 81. The trial judge would have had no reason to invoke the technical legal concept. Moreover, where corroboration is required as a matter of law, evidence either satisfies the elements of corroboration or it does not: R. v. Zou, 2017 ONCA 90, 346 C.C.C. (3d) 490, at paras. 40-41 (describing the common law rule); and Vetrovec v. The Queen, [1982] 1 S.C.R. 811, at p. 832 (describing Criminal Code requirements).

[18] It is evident from the trial judge's use of the term "some corroboration" that he was not claiming that the technical demands of the law of corroboration were met. As Doherty J.A. said in Zou, at para. 42, "a proper contextual reading of the reasons will sometimes demonstrate that the trial judge used the word 'corroboration' in a more limited sense" as opposed to its legal sense. Here, a fair reading of the reasons and the record indicate that he was referring to the torn bra as "supportive" or "confirming" the complainant's version of events. He was not referencing "corroboration" in its legal sense.

[19] Nor do we agree that the torn bra lacks the independence required to provide logical support for the complainant's testimony. The condition of a physical object or thing can be readily observed, without the testimony of a witness: see, e.g., R. v. Kiss, 2018 ONCA 184, at paras. 61-63. An object, or a photo of the object, is therefore additional evidence that exists independently of the witness and can support the testimony of the witness.

[20] We do agree that the weight that can be given to the condition of an item or thing will be diminished where the link between that item or thing and the event depends on the testimony of the witness for which the item or thing is offered to support. It is not an error, however, for a trial judge to find testimony to be supported by the production of a thing by the witness that is in a condition that is consistent with the testimony the witness provides: see, e.g., R. v. A.G.W., 2017 ABCA 247, at para. 23, affirmed 2018 SCC 9. This is particularly so where, as here, no suggestion has been made that the object has been tampered with.

E. Repetitive Testimony

[21] Finally, the trial judge was entitled to rule that the cross-examination about the complainant's satisfaction with the police video interview was repetitive. This was not a central line of questioning and D.A.'s point had already been made. As this court held in R. v. McLaughlin (1974), 14 C.C.C. (2d) 562 (Ont. C.A.), at p. 572, a "trial judge has the right and the duty to restrict cross-examination in all cases where the evidence sought to be obtained is irrelevant, repetitive or in any other manner incompatible with a fair and proper trial." See also R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 44. The trial judge's decision to move counsel along was not an improper interference in the right of cross-examination.

CONCLUSION

[22] We therefore dismiss the appeal.

"Robert J. Sharpe J.A."

"David Brown J.A."

"David M. Paciocco J.A."