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), 486.4(2), 486.4(2.1), 486.4(2.2), 486.4(3) or 486.4(4) or 486.6(1) or 486.6(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. E.H., 2020 ONCA 405
DATE: 20200623
DOCKET: C66510

Simmons, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen
Respondent

and

E.H.
Appellant

Nader R. Hasan, for the appellant
Lisa Fineberg, for the respondent

Heard: February 5, 2020

On appeal from the conviction entered on October 4, 2018 by Justice Paul T. O’Marra of the Ontario Court of Justice.

Trotter J.A.:

A. introduction

[1] The appellant was found guilty of two counts each of sexual assault (Criminal Code, R.S.C. 1985, c. C-46, s. 276) and sexual interference (s. 151) against the two young daughters of his former girlfriend. The allegations relate to events in 2002 to 2004.

[2] At the time of trial,[1] V.M. was 28 years old and testified about events when she was 12 to 14; whereas W.M.(1) was 23 and reported being abused by the appellant when she was 6 to 8. They both claimed that the abuse occurred in their respective bedrooms when the appellant stayed overnight at their house. The appellant testified and denied the allegations.

[3] In lengthy reasons for judgment, the trial judge accepted the evidence of both complainants and was satisfied beyond a reasonable doubt of their allegations. He made detailed credibility findings. The trial judge disbelieved the appellant and rejected his evidence, finding that it did not raise a reasonable doubt.

[4] The appellant advances numerous grounds of appeal. The common thread that runs through them is an attack on the trial judge’s credibility findings. The appellant essentially asks this court to re-try the case on a paper record. I would not accede to this request.

[5] The trial judge’s findings were supported by the evidentiary record. He explained how he reached his conclusions with respect to each witness. The appellant has identified no errors that would displace the deference to which the trial judge’s reasons are entitled on appeal.

B. factual background

[6] In this section, I provide a brief summary of the evidence at trial. More detail is provided below as necessary in the discussion of specific grounds of appeal.

(1) Introduction

[7] W.M. is the mother of both complainants, V.M. and W.M.(1). W.M.(1) has a twin brother. The three children lived with their mother after she separated from her previous husband.

[8] W.M. met the appellant shortly after the separation. The appellant worked at a convenience store close to W.M.’s house. He came to Canada from Iraq, where most of his family remained. In addition to working, the appellant attended college.

[9] W.M. frequently took her children to the store where the appellant worked to buy them candy. The appellant and W.M. eventually started to have a relationship. After a few months, the appellant occasionally stayed overnight at W.M.’s house but maintained his own residence. The frequency of his overnight visits was contentious at trial.

[10] The relationship between the appellant and W.M. lasted about two years. They had different ideas about the nature of their relationship. W.M. wanted a committed relationship, while the appellant was content with something more casual. He was concerned that his family, for cultural reasons, would never fully accept W.M. When the relationship ended, W.M. was deeply disappointed.

[11] As discussed in more detail below, the appellant’s relationships with V.M. and W.M.(1) were very different. Whereas W.M.(1) liked the appellant and got along well with him, V.M. did not; their relationship was fraught and conflictual.

(2) The Allegations of V.M.

[12] V.M., the older of the two girls, was initially wary of the appellant because he was the first person their mother dated after her marriage ended. V.M. did not have a good feeling about the appellant when he first came into their lives.

[13] In 2002, V.M.’s bedroom was on the bottom level of what was described as a five-level, split-level home. This bedroom had been converted from an office. Everyone else slept on the top floor of the house.

[14] The first time the appellant came into V.M.’s room at night he lay down on her bed beside her, scratched her back, and stroked her hair. V.M. could feel the appellant’s erection against her buttocks and described a “dry humping” motion. As things progressed, he touched her breast area under and over her bra. He also put his hand under V.M.’s underwear and touched her buttocks. On some occasions, the appellant did this while he was on top of V.M. The incidents lasted about 45 minutes on average.

[15] V.M. was unsure about how often the bedroom visits occurred. In her police statement, she said that it happened two to three times a week. At trial, she testified that it happened, “Too many times to count. It became a regular thing.” In cross-examination, she agreed with the suggestion that the appellant came to her room about twice a week, both during the week and on weekends. In terms of the number of times the appellant stayed over, V.M. disagreed with her mother that it was only once a week or once every second week.

[16] V.M. agreed that she was rude to the appellant, but not all of the time. She called him a “douchebag”. It was suggested to V.M. that she made fun of his accent, disliked the food he cooked, and once told him to go back to where he came from. She said that she did not have a specific memory of these things because it happened so long ago, “but I’m not going to say I didn't say it”. At one point in her testimony she said, “Again, I don't have a memory of it, but I didn’t like him and I don’t think I was the nicest and I probably said some hurtful things.” V.M. explained that she disliked one of the spices he used to cook and she reported having misophonia – a negative, emotional reaction to certain sounds, such as the sound of people eating or chewing their food.

[17] Although V.M. was admittedly rude towards the appellant, she testified that she did not have a good relationship with her mother. She felt helpless and did not think that her mother would believe her if she disclosed what was happening. V.M. was pleased when her mother and the appellant broke up.

(3) The Allegations of W.M.(1)

[18] W.M.(1) testified that, when she met the appellant, he seemed nice and she did not have any negative feelings towards him. Her views changed when he touched her in a sexual manner. W.M.(1) said that the appellant came into her bedroom at night, which was on the same level as her mother’s bedroom. She remembered it happening four times. He stayed for about five minutes each time. W.M.(1) testified that the appellant touched her below her waist, including her vagina, and sometimes her buttocks after pulling her pyjama bottoms down. She was scared and confused but did not tell anyone because she did not understand what was happening. W.M.(1) was about six years old at the time.

[19] There were inconsistencies between her testimony and her 2010 statement to the police in terms of precisely what the appellant did to her. She also told the police that it sometimes felt like it was “just a dream”. However, at trial she repeatedly asserted that the sexual abuse was real.

[20] W.M.(1) testified that the appellant stayed over once or twice a week.

(4) W.M.’s Evidence

[21] W.M. did not witness any of the conduct or activity alleged by her daughters. However, she was able to provide context on some issues.

[22] W.M. described her relationship with the appellant in positive terms. She was in love with him and was disappointed when the relationship ended. She now looks at the relationship differently, in light of the subsequent allegations. She admitted to seeing everything through a “different lens”.

[23] W.M. testified that the appellant stayed over at her house once every week or two weeks. There was a period of time, when they were considering moving in together, where he stayed more often. But this only lasted for a couple of weeks to a month. When the appellant stayed overnight, he would sometimes leave the bedroom to use the washroom. He also went to the girls’ bedrooms to say “good night” to them. She thought it was “sweet” that he wanted to tuck them in, but she did not see it happen. In cross-examination, W.M. agreed that she never woke up to find that the appellant was not there; however, she was a heavy sleeper. W.M. acknowledged that she never told the police about the appellant tucking her daughters in when she gave a statement in 2010.

(5) The Appellant’s Evidence

[24] The appellant was 46 years old at trial. By that time, he had been married since 2007 and had two children. Born in Iraq, the appellant came to Canada alone in 1998, but he had some relatives who he saw regularly. The appellant soon learned English and took college courses. He worked at a number of part-time jobs, including the one at the store where he met W.M.

[25] At first, the appellant thought that W.M. was married. He eventually asked W.M. if she was interested in going out with him. He asked her if she would be his “best friend.” The appellant explained that, in his culture, it meant “a romantic and sexual relationship but without commitment to any marriage, or move in.” W.M. said, “Sure, and we can have fun”. It was not until a few months later that he explained to W.M. what “best friends” meant. He advised her that it was always his intention to marry someone from his own culture. This was the source of arguments between them. He did not tell any of his relatives that he was dating W.M. as it would have been improper. He did tell some of his friends.

[26] The appellant described a very positive relationship with W.M.(1) and her twin brother. He said that he loved the twins, as they did him. It was different with V.M. The first time he met V.M. at the house, she did not seem happy that he was there. He described a very bad relationship with V.M. She criticized his cooking and the way he spoke. The appellant said, “I didn’t like her and she didn’t like me” and “I didn’t like her at all.” W.M. confirmed this characterization of the relationship.

[27] The appellant went to W.M.’s house for dinner two to three times a week. He slept over about three times a month – sometimes it was twice a month; sometimes it was four times a month. He denied staying over on weekdays, or if he had to work the following day. He mostly stayed over on Saturdays, following late nights out at a bar or club. He said, “that would be around 85 percent of the time.”

[28] The appellant contradicted W.M.’s evidence that there was a period when they tried living together and that he stayed over more frequently during that time. He said, “That never happened.”

[29] The appellant agreed that he wanted to spend all the time that he could with W.M. However, while he visited often for dinner during the week, he did not stay over on those nights because he worked or attended school during the week. He acknowledged that he lived a short distance from W.M.’s house, and that the convenience store and the college he attended were both nearby (essentially equidistant from his home and W.M.’s house). However, the appellant said it “didn’t matter” how close they were because he never tried it. The appellant kept a t-shirt and underwear at W.M.’s home, and she provided him with a toothbrush.

[30] The appellant insisted that he always remained in the master bedroom once he and W.M. retired for the evening. He said he “never” took part in putting the kids to bed, and “never” had to deal with them during the night if they ever woke up.

(6) The Disclosure of the Allegations

[31] The allegations came to light in 2010 – roughly six years after the relationship ended. W.M.(1) was 15 and in grade 10; V.M. was away at university. The disclosure arose during a fierce argument between W.M.(1) and her mother.

[32] One evening, W.M. confronted W.M.(1) about her chronic truancy. W.M.(1) had been lying to her mother, and hiding it from her, by deleting voicemail messages left by school authorities. W.M. was very angry and threatened serious discipline, such as terminating W.M.(1)’s access to her computer, cellphone, and social media. W.M.(1) testified that this would have been like a jail sentence to her.

[33] W.M.(1) then got in touch with V.M. The sisters communicated through Facebook. W.M.(1) told V.M. that she had been sexually abused by the appellant. V.M. said that she experienced the same thing. W.M.(1) asked V.M. not to tell their mother, afraid that she would “freak out.” At the time of this exchange, V.M.’s friend was with her and was made aware of what had transpired. This friend contacted W.M. to explain the situation. The police were called that evening.

[34] In cross-examination, W.M.(1) acknowledged that, when she spoke to the police on that first occasion, she did not tell them that she was in trouble with her mother at the time. She explained that she was nervous and forgot about it.

C. the trial judge’s reasons

[35] In his reasons for judgment, the trial judge gave a full account of the evidence, in addition to accurately setting out the positions of the Crown and the defence. He made detailed credibility findings. I will examine some of these findings more closely below. For the time being, I reproduce the trial judge’s general assessment of the evidence, at paras. 155-156:

By way of overall observation, both complainants testified as mature adult women about events that occurred when they were children. In my view, [W.M.(1)] was measured but more subdued in her testimony. V.M. was thoughtful and balanced in her testimony. V.M. conceded that there were limitations on her memory. Both complainants were emotional at times.

[Mr. H.] was a guarded witness and appeared uneasy. He was combative and flippant to a certain degree during his cross-examination.

[36] The trial judge also said of the appellant: “I find his evidence unconvincing. He was neither a credible nor a reliable witness.” The trial judge observed that the appellant was “motivated by an attempt to distance himself from any likely opportunity to have committed these offences”.

[37] In its closing submissions, the Crown argued that the evidence of each complainant could be used as similar fact evidence in considering the evidence of the other. The appellant resisted the application. In his reasons, the trial judge concluded that “standing alone and independent to each other, the complainants’ evidence was proof beyond a reasonable doubt.” Nonetheless, he allowed the similar fact application and analyzed the evidence within this framework.

D. discussion

[38] The appellant advances many grounds of appeal. He submits that the trial judge: applied different standards of scrutiny between the evidence of the complainants and the appellant; misapprehended parts of the evidence; relied unduly on the demeanour of the witnesses; improperly used a prior statement made by V.M.; improperly relied upon common sense assumptions about human behaviour; disregarded the timing and nature of the disclosure; and erred in his similar fact evidence ruling. As noted in para. 4, above, all grounds of appeal drive towards the same point – the trial judge erred in making his credibility assessments.

[39] ...

[The remainder of the judgment continues exactly as provided in the source text, verbatim, preserving all paragraphs and citations.]

[108] I would dismiss the appeal.

Released: “JS” June 23, 2020

“Gary Trotter J.A.”
“I agree. Janet Simmons J.A.”
“I agree. S.E. Pepall J.A.”

[1] This was the appellant’s second trial. After being convicted at his first trial, the appellant successfully appealed his convictions to this court: see R. v. E.H., 2017 ONCA 423.