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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

DATE: 20200505 DOCKET: C66414

Doherty, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Mahir Diabas Appellant

Counsel: Stephen Whitzman, for the appellant Molly Flanagan, for the respondent

Heard: In Writing

On appeal from the convictions entered by Justice Jennifer Woollcombe of the Superior Court of Justice on September 12, 2018, with reasons reported at 2018 ONSC 5305 , and from the sentence imposed on December 14, 2018, with reasons reported at 2018 ONSC 7500

Reasons for Decision

A. Introduction

[1] This appeal was heard in writing on consent of the parties pursuant to the March 17, 2020 COVID-19: Notice to the Profession and the Public.

[2] Following a judge alone trial, the appellant was convicted of two counts of sexual assault, two counts of assault and one count of criminal harassment. He was sentenced to a total of seven years’ imprisonment, less 240 days’ credit for pre-sentence custody. He appeals against the convictions for sexual assault and assault and seeks leave to appeal the sentences imposed for those offences. The main issue raised on the conviction appeal is whether the trial judge erred by applying different standards of scrutiny to the Crown and defence evidence. Although not framed as a ground of appeal, the appellant also submits that the trial judge repeatedly interrupted defence counsel at trial's cross-examination of the complainant, causing defence counsel to retreat from lines of questioning. Concerning sentence, apart from asserting that the sentence imposed was harsh and excessive in all the circumstances, the appellant makes no submissions.

B. Background

[3] The charges arose out of the relationship between the appellant and the complainant, S.S. According to the complainant, the two met about nine years prior to the 2018 trial when her aunt brought the appellant to the complainant's house because he was looking for a prostitute. The appellant was 14 years older than the complainant. The complainant was a crack addict. She said the appellant supplied her with drugs and money in exchange for sex. Over the years, their relationship became something of a friendship, albeit a toxic one.

[4] The complainant alleged that the appellant forced her to have anal intercourse on two occasions, once at a crack house around Halloween 2015, and once at a motel in late February or early March 2016. According to the complainant, after the first incident, she tried to attack the appellant. He struck her in the face and tried to flip her over a fence. The complainant also alleged that, sometime before the second incident, the appellant pushed her onto her knees and demanded that she perform oral sex on him after giving her some crack. When she refused to do so, the appellant urinated on her.

[5] The complainant testified that she avoided the appellant after the motel incident. In April 2016, the complainant and her boyfriend had moved into the complainant's mother's house and the complainant was attending school. The appellant called the complainant's mother's house several times while parked outside the house and later followed the complainant and her boyfriend while they were riding on a bus. When the appellant attempted to follow the complainant into a convenience store, the store clerk locked the door and called the police. On being interviewed by the police, the complainant disclosed her allegations about the sexual assaults and assaults.

[6] However, the complainant wrote letters recanting her allegations on two occasions prior to trial. The first occasion was in November 2016. According to the complainant, despite a no contact order, she and the appellant were in constant contact following his arrest and prior to the preliminary inquiry in July 2017. The appellant offered the complainant $40,000 as a down payment on a house in exchange for writing a recantation letter. The complainant wrote the letter while on drugs in accordance with the appellant's instructions. She testified that she and the appellant looked at houses together but he did not give her the money. He asked her not to attend the preliminary inquiry but she was off drugs at that point and went in any event.

[7] The complainant wrote a second recantation letter in April 2018. She said the appellant gave her a couple of hundred dollars and his credit card to use. He also paid some rent on a storage space she was renting. The complainant was living in shelters at the time and had relapsed into drug use. She explained that the appellant took her to a resource centre and stood over her as she typed the letter and then drove her to drop it off.

[8] On June 25, 2018, the complainant attended a meeting with the Crown and the officer-in-charge. She said she had been doing drugs with the appellant the night before, that he paid her money, and that she went to the meeting to have the charges dropped. She admitted lying to the police during this interview. However, she said she realized it was wrong within one or two days and called back and asked for another meeting.

[9] The appellant testified at trial and denied the complainant's allegations of sexual assault and assault. He also maintained that his actions in April 2016 did not amount to criminal harassment.

[10] The appellant came to Canada in January 2008. He testified he was introduced to the complainant in late 2009 through a woman he met at a grocery store. For several months, he paid her to teach him English. After about 10 months, their relationship became sexual. The appellant claimed to have fallen in love with the complainant around 2013. He denied giving her money or drugs in exchange for sex. He also denied having committed the offences. Although he acknowledged being aware that the complainant was writing the recantation letters, he denied giving her money to write them.

C. The trial judge’s reasons

[11] At the outset of her analysis, the trial judge acknowledged "genuine difficulties with the evidence of the complainant", given the two recantation letters and inconsistencies between the complainant's trial evidence and her preliminary inquiry evidence and statements to the police. However, she concluded the complainant was a reliable and trustworthy witness whose account of the allegations she accepted for reasons she summarized in the following observations about the complainant's evidence:

• she was candid and forthright about her background as a crack addict;
• she admitted many things that did not reflect well about her;
• she acknowledged that she had recanted the allegations twice and deliberately lied and offered a "very credible explanation" for her recantations;
• she acknowledged many of the inconsistencies that were put to her and explained in a plausible way why she said the various things that were or appeared inconsistent.

[12] As for the appellant, the trial judge wholly rejected his evidence for reasons she summarized as follows:

I have also considered the evidence of the accused, who has emphatically denied ever having committed any of the offences. I found him to be an evasive and unresponsive witness. Frequently, rather than answering questions, he chose to make disparaging comments about the complainant. When confronted about what he had said previously to the police, he often resorted to claims about communication difficulties flowing from his lack of understanding of the English language. While I need not, and cannot accurately comment on his English proficiency, it appeared to me that he used this as an excuse for any prior statement from which he wanted to distance himself. Repeatedly, while the complainant testified, I observed the accused to openly scoff at her evidence in a demeaning manner, showing indifference to her and undermining the credibility of his claims of loving her. I find he was not only smug, arrogant and condescending about the complainant, but also that his evidence often made little sense, was internally inconsistent and was not credible.

[13] After providing these summaries of her conclusions, the trial judge reviewed the evidence concerning the offences and other matters affecting both the complainant's and the appellant’s credibility and made specific findings concerning that evidence.

D. The appellant’s position on appeal

[14] The appellant acknowledges that it is difficult to succeed on appeal based on a claim of uneven scrutiny of the evidence. However, he points to three factors concerning the trial judge's assessment of his evidence and two factors concerning the trial judge's assessment of the complainant's evidence that he asserts demonstrate uneven scrutiny.

[15] First, the appellant submits the trial judge erred in finding that he (the appellant) frequently chose to make disparaging comments about the complainant rather than answering questions and in using this as a factor undermining his credibility. The appellant says he made comments that could be described as disparaging on only four occasions during a lengthy cross-examination and that none of these comments were unresponsive to the question asked or formed the whole of his answer. In contrast, the complainant made many more comments that were disparaging of him or his counsel. Yet the trial judge did not find the complainant less credible as a result.

[16] Second, the appellant submits it was internally inconsistent and illogical for the trial judge to negatively assess his credibility on the basis that he explained inconsistencies between his trial evidence and his statement to the police as being the result of his poor English while at the same time acknowledging that she could not assess his proficiency in English.

[17] Third, the appellant says it was an error in law for the trial judge to rely, in part, on his demeanour outside the witness box to negatively assess his credibility. The trial judge drew a negative inference from the appellant's conduct in "scoffing" at the complainant while she testified. The appellant submits that reaction could equally be the result of the complainant not telling the truth.

[18] Concerning the complainant, the appellant asserts the trial judge applied an overly generous level of scrutiny to her evidence in concluding that her recantations were not truthful while finding her evidence concerning the allegations was true. In the face of her evidence that she was prepared to recant for a pay-off, it was surely an equally reasonable inference that she fabricated the allegations to extort a pay-off.

[19] Further, the appellant submits that when assessing the recantations, the trial judge erred in finding the complainant's credibility was enhanced by her candour and the fact "that she did not downplay her complicity in what she now acknowledges was a plot of deception". As this court recently observed in R. v. Kiss, 2018 ONCA 184, at para. 107, "admitting a difficult fact does not eliminate the difficult fact".

[20] Finally, the appellant points to the complainant's post-offence messages to the appellant, in at least one of which she professed her love for him. The appellant says these messages undermined the credibility of the allegations and that the trial judge erred in holding that drawing such an inference would depend on impermissible stereotypes about how victims of sexual assault behave.

E. Discussion – Conviction Appeal

[21] We will address the appellant's submissions in turn.

(1) Disparaging Comments

[22] We reject the appellant's argument that the trial judge's finding that the appellant frequently made disparaging comments about the complainant rather than answering questions and her failure to comment on the complainant's disparaging remarks about the appellant and his counsel reflects uneven scrutiny.

[23] As a starting point, even if the comments occurred on only four occasions, that does not make the trial judge's use of the word "frequently" inaccurate. Further, the context for the complainant's disparaging remarks was very different from the context of the appellant's remarks.

[24] The complainant gave evidence of a toxic, manipulative and exploitive relationship with the appellant. Given that evidence, it was open to the trial judge to consider her disparaging remarks about the appellant and her combativeness with counsel as being consistent with her evidence and as not undermining her credibility. Moreover, some of the language used by defence counsel during cross-examination invited an angry response.

[25] On the other hand, the appellant presented himself as someone who had fallen in love with the complainant and who would never hurt her. His disparaging remarks were inconsistent with that presentation. Moreover, they were made during cross-examination when he was confronted with various inconsistencies between his evidence at trial and his statement to the police and potential implausibilities in his evidence. Considered in the context in which they were made, it was open to the trial judge to view his disparaging remarks as an effort to evade a truthful answer.

[26] As an example, the appellant was asked if it was his understanding that he and the complainant were boyfriend and girlfriend. He testified that he rejected a request from the complainant that they live together. Instead he told her that she should stop taking drugs and that if she really loved him they would get married. The appellant testified that he had never offered to become boyfriend and girlfriend with the complainant and that she had rejected the concept of marriage. After being confronted with a portion of his videotaped statement to the police in which he had said he asked her to become boyfriend and girlfriend, the appellant first explained his request had been prior to her involvement in an accident. When asked what had changed, the appellant responded he was a refugee in this country and had no documents. When asked why he went from wanting to be in a relationship with the complainant to not wanting to be in a relationship with her he said he did not understand the question. When the question was repeated, the appellant responded, "in those years, [the complainant] had almost seven different boyfriends. Five of them she called the police on them and she created stories against them."

[27] On another occasion, in the context of being asked about his post-charge contact with the complainant the appellant denied being furious at her for making the allegations. When pressed on the issue, the appellant gave the following answer:

[The complainant] has made a lot of lies. Even about her family. She told me that her mother used to sell her for the dealer in return for track, crack, sorry. She also told me that her mother's husband tried to have sex with her. I just need to tell the court one point. When [the complainant] uses different types of drugs, she cannot remember anything. Therefore, when we go to healing centres, we have go [sic] first to the … hospital in Brampton … to have a medical record issued for her stating that she is mentally capable to allow her enter [sic] the centre. This happened honestly four to five times.

(2) Use of the Appellant’s Lack of Proficiency in English

[28] We do not accept the appellant's argument that the trial judge's finding that it appeared that the appellant used his lack of proficiency in English as an excuse for prior inconsistent statements internally inconsistent and illogical given that she acknowledged she could not assess his proficiency in English.

[29] The trial judge made findings about specific instances where she considered the appellant was relying on his lack of proficiency in English as an excuse. Her reasons reflect that these findings were premised on the specific circumstances and were not a reflection of an overall assessment of the appellant's proficiency in English. There is nothing inconsistent or illogical about the trial judge's conclusion that the appellant understood what was being said in a particular instance while at the same time acknowledging that she was not in a position to assess the appellant's overall proficiency in English.

(3) Use of Demeanour Outside the Witness Box

[30] We acknowledge that it would have been preferable had the trial judge not referred to the appellant's demeanour outside the witness box as part of the basis for rejecting his evidence. As this court explained in R. v. M. (T.), 2014 ONCA 854, 318 C.C.C. (3d) 421, at paras. 50-69, there are several reasons why such a practice should be avoided. Among other things, an accused person likely has no expectation of being judged while seated in the courtroom and no opportunity to explain whatever observations are made by the trial judge. In addition, the trial judge has no baseline for comparing the accused's reaction to whatever circumstances presented in court.

[31] That said, we are not persuaded that the trial judge's reference to the appellant's demeanour outside the witness box gave rise to a miscarriage of justice in this case. The trial judge gave lengthy reasons analyzing the evidence presented and made detailed findings of credibility based on the evidence. Although the reference was made as part of the trial judge's opening summary of her conclusions, no further reference was made to this factor as part of the trial judge's subsequent detailed assessment of the appellant's credibility. In the circumstances, we conclude this isolated reference was of no significance to the trial judge's conclusions.

(4) Recantations

[32] The trial judge devoted several paragraphs of her reasons to discussing the complainant's two letters of recantation and what the complainant described as her lies to the officer-in-charge on June 25, 2018. Ultimately, she accepted the complainant's explanations of drug use and the appellant's manipulation and offer of payment of $40,000 as the down payment for a house to conclude that the recantations and statements to the officer-in-charge were lies and the complainant's in-court testimony was the truth. The trial judge explained her reasoning, in part, as follows:

The recantation letters and lies to [the officer in charge] have certainly caused me to reflect on whether the complainant is a person who lies to advance her interests as is alleged…

She has provided what I find to be a plausible, credible explanation for why she lied and recanted her allegations in the manner that she did. I accept her explanation. It makes sense and is logical in the context of her relationship with [the appellant] and where she was at in her life when she was using crack and had very low self-esteem. It fits with the rest of her evidence and the evidence as a whole. She exhibited candour and what I find to be genuine embarrassment when she explained how she felt manipulated to recant for the promise of a sum of money that would have changed her life. I find that she did not downplay her complicity in what she now acknowledges was a plot of deception. She acknowledged her personal weakness and her role fully, a fact that I find further enhances her credibility.

[33] In our view, the trial judge carefully and thoroughly considered the evidence and arguments relating to the complainant’s recantations and statements to the officer-in-charge. The trial judge accepted the complainant’s evidence for reasons that she explained. Concerning her reliance on the complainant’s candour and the fact that the complainant did not downplay her complicity in the events, this is not a case like Kiss, on which the appellant relies. In Kiss, the complainant gave evidence that either made no sense or was “curious” in the context of her narrative of the events and that tended to support, at least to some extent, the appellant’s version of events. The trial judge credited the complainant for her candour without considering the difficulties it presented to the complainant’s narrative. It was in this context that Paciocco J.A. said: "admitting a difficult fact does not eliminate the difficult fact".

[34] However, in this case, the complainant not only admitted the recantations and alleged lies, she provided an explanation for them. The trial judge fully recognized the difficulties the complainant’s recantations and lies presented. After careful consideration, she accepted the complainant’s explanations for them and the complainant’s in-court evidence as truthful. These were findings the trial judge was entitled to make. Absent demonstrated error, they are entitled to deference.

(5) Post-Offence Messages

[35] At trial, the appellant argued that a series of messages sent to him by the complainant following the alleged incidents were inconsistent with the complainant having been sexually assaulted. The messages were dated February 27, 2017; September 23, 2017; October 1, 2017 and March 31, 2018. The first message included the statement “love you”. Later messages included photos of the complainant’s children and grandchildren. The last message included the statements: “And what I did to you, I don’t know how to fix And I can’t live without you”.

[36] The trial judge reviewed the messages and the complainant’s explanation for them. The complainant explained that the first message came after the appellant’s father died and the appellant apologized for some of his conduct. The explanation for the last message was that the complainant had slit the tires on a car in the appellant’s driveway, that she almost felt she should let the appellant get away with what he did because of all the good he had done for her and that her head had been “messed up” about whether she deserved what the appellant had done to her.

[37] After setting out the gist of the messages and the complainant’s explanations, the trial judge concluded this section of her reasons by saying:

I have considered the suggestion made by the defence that the complainant’s credibility [is] undermined by the fact that she is said to have behaved in a manner inconsistent with having been sexually assault[ed] in the years after the alleged offences, particularly as demonstrated by what appear to be loving Facebook messages.

The law is very clear that the credibility of a sexual assault complainant is not to be assessed by comparing how that complainant behaved with stereotypical assumptions about how such a complainant usually behaves or should behave. There is no rule to be applied as to how sexual assault victims should or will behave. More specifically, with respect to this case, it is legally impermissible to infer from the fact that the complainant maintained contact with the accused after the alleged offences, even though that contact included kind and loving sentiments, that she is less credible in her allegations: R. v. A.R.J.D., [2017] ABCA 237 at paras. 39-48; aff’d 2018 SCC 6.

[38] The appellant argues that A.R.J.D., as affirmed by the Supreme Court of Canada, stands for the more limited proposition that it is an impermissible stereotype to “expect that a victim of sexual abuse would demonstrate behaviours consistent with that abuse or at least some change in behaviour such as avoiding the perpetrator”. In other words, a failure to avoid the perpetrator cannot be the subject of a presumptive adverse inference. However, relying on R. v. D.M., 2019 ONSC 4001, the appellant argues that evidence of continued communication between a complainant and an accused following an alleged sexual assault is not automatically irrelevant. He asserts that the complainant’s post-offence messages to the appellant in this case provided an evidentiary basis for a negative assessment of her credibility.

[39] We do not accept the appellant’s submissions. On the appellant’s own evidence, he and the complainant had been involved in a lengthy sexual relationship while she was a crack addict and during which he gave her money from time to time, even after the allegations were made. Having regard to the nature of the relationship and the complainant’s explanations for the communications, which were accepted by the trial judge, the complainant’s contact and communications with the appellant following the alleged events could not adversely affect her credibility.

(6) Interruptions of Defence Counsel’s Cross-Examination

[40] Based on our review of the record, the appellant’s complaints about the trial judge interrupting defence counsel’s cross-examination are not borne out.

F. Discussion – Sentence appeal

[41] At trial, the defence requested a global sentence of three to four years’ imprisonment while the Crown sought a sentence of eight years’ imprisonment. In her reasons for sentence, the trial judge thoroughly reviewed the circumstances of the offences and the offender, the applicable sentencing principles, and the aggravating and mitigating factors present (which in the latter case included the appellant’s status as a first offender and holding longstanding gainful employment). We see no error in principle in the trial judge’s reasons, nor is the sentence imposed demonstrably unfit.

G. Disposition

[42] Based on the foregoing reasons, the conviction appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

“Doherty J.A.”

“Janet Simmons J.A.”

“G. Pardu J.A.”