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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. Alisaleh, 2020 ONCA 597

DATE: 20200922

DOCKET: C68260

Fairburn A.C.J.O., MacPherson and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jawid Alisaleh

Appellant

Jawid Alisaleh, acting in person

Paul Alexander, appearing as duty counsel

Nicole Rivers, for the respondent

Heard: September 8, 2020 by video conference

On appeal from the conviction entered by Justice Breese Davies of the Superior Court of Justice, dated October 11, 2019, with reasons reported at 2019 ONSC 5859, and from the sentence imposed on March 6, 2020.

REASONS FOR DECISION

[1] The appellant was convicted of one count of sexual assault and received a sentence of six months less one day in custody followed by two years of probation. He appeals from conviction and sentence.

[2] At trial, there was no dispute that the appellant touched the complainant in a sexual manner. The issue was whether he continued to do so after the complainant withdrew her consent. According to the complainant, on March 8, 2017, she went to the appellant’s apartment and engaged in consensual sexual activity including vaginal intercourse. However, she verbally withdrew her consent when the sex became rough and started to hurt. The appellant ignored her, continued to touch her in a sexual manner, and unsuccessfully tried to anally penetrate her.

[3] The complainant ended the assault by pushing the appellant off of her and getting dressed. She left the apartment to find out the address of the building because the appellant refused to drive her home. She left without her belongings and the appellant locked her outside of his apartment. The complainant called a friend to pick her up and her friend’s mother came to get her. They attempted to try and retrieve her belongings, however, the appellant refused to open the door. At that time, the complainant did not disclose that she had been sexually assaulted.

[4] The complainant called 911 and asked for police help in retrieving her belongings. She was told to wait for the arrival of a police officer. After waiting some time, she called 911 a second time and was told by the operator that because there was no life and death emergency there would be a delay. It was at this point that she disclosed that she had been sexually assaulted and falsely claimed it occurred just 10 minutes before the call. At trial, the complainant acknowledged that she lied to the operator about the timing of the assault because she believed that if she told the operator that the assault had just happened the police would respond quickly.

[5] The appellant did not testify at trial. His position was that the complainant was neither credible nor reliable because her evidence suffered from several flaws, including that she acknowledged lying to the police to retrieve her belongings. The trial judge disagreed. She accepted the complainant’s testimony that there was no consent to sexual intercourse once it became rough and the complainant told him to stop.

[6] With the assistance of duty counsel, the appellant raises three grounds of appeal in relation to his conviction.

[7] First, that the trial judge erred by treating a lack of embellishment in the complainant’s allegations as enhancing her credibility.

[8] Second, that the trial judge reversed the burden of proof by focusing on whether flaws in the complainant’s evidence were sufficient to cause her to reject that evidence, when she should have focused on whether the complainant’s evidence was sufficiently cogent to be accepted in the first place.

[9] Third, that the trial judge erred in her credibility assessment by acknowledging the flaws and contradictions in the complainant’s evidence but excusing them based on a misapprehension of their relevance and by unreasonably finding that the complainant was credible because she was corroborated on a peripheral fact.

[10] The second and third grounds of appeal can be dealt with briefly.

[11] With respect to the argument that the trial judge reversed the burden of proof, we note that a trial judge is presumed to know the law and that, on more than one occasion in her very detailed and thorough reasons, the trial judge stated that the burden was on the Crown to prove the case beyond a reasonable doubt. The trial judge identified that the only issue was whether the complainant consented which turned on an assessment of the complainant’s credibility and the reliability of her evidence. The trial judge then went on to deal specifically with each submission made by defence counsel about why the complainant’s credibility and reliability should be rejected. She did not reverse the burden of proof.

[12] Additionally, we do not accept that the trial judge erred in her assessment of the flaws in the complainant’s evidence, or in her treatment of the corroborating evidence. Although troubled by some aspects of the complainant’s evidence, the trial judge set out detailed reasons why the complainant’s misleading statement to the police and the inconsistencies in her evidence did not cause her to reject the complainant’s evidence that she had withdrawn her consent.

[13] Turning to the first ground of appeal, the Crown concedes that the trial judge erred in finding that the complainant’s credibility was enhanced because she did not appear to exaggerate her allegations against the appellant. However, the Crown argues that the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 should apply.

[14] At trial, the Crown argued in its closing submissions that the lack of embellishment supported the complainant’s credibility. Defence counsel objected to this submission and argued that the lack of embellishment had no bearing on the complainant’s credibility. As defence counsel put it, “you don’t get points for not exaggerating”. Defence counsel expressly stated that their position was not that the complainant was so angry that she embellished her testimony. Rather, their case was that the complainant lied to the police on the spur of the moment to retrieve her belongings.

[15] When addressing why she believed the complainant, the trial judge explained: “[t]here are two important factors that I find enhance [the complainant’s] credibility”. One of those two important factors pertained to the view that the complainant had not embellished during her evidence. As the trial judge explained, although every allegation of sexual assault is serious the allegations made by the complainant were “relatively modest” and that the complainant “gave a measured description of what took place between them without apparent exaggeration.” The trial judge also emphasized that the complainant’s description of the assault was “understated”.

[16] To be clear, it is not an error to simply note that there is an absence of embellishment in the complainant’s testimony. This court has held that the presence of embellishment can be a basis to find the complainant incredible, and there is nothing wrong with noting the absence of something that could have diminished credibility. However, it is wrong to reason that because an allegation could have been worse, it is more likely to be true: R. v. Kiss, 2018 ONCA 184 at para. 52, citing R. v. G.(G.) (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1, at p. 10 (Ont. C.A.); R. v. L.L., 2014 ONCA 892, at para. 2; R. v. G. (R.), 2008 ONCA 829, 243 O.A.C. 1, at para. 20. Our colleague Paciocco J.A. put it this way in Kiss at para. 52:

On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible. [Emphasis added.]

[17] In this case, the trial judge was not simply noting that the complainant’s evidence did not suffer from a problem of exaggeration or embellishment that diminished its weight in response to a defence argument that the complainant had embellished her allegations. Rather, the lack of embellishment was specifically noted as an “important” factor used to “enhance” the complainant’s credibility. Therefore, we agree with the Crown’s concession on this error.

[18] Notwithstanding the error, the Crown requests that we apply the curative proviso to uphold the conviction. Although there is no hard and fast rule that excludes the curative proviso in cases turning upon credibility, caution should be exercised prior to its application if credibility is the key issue at trial: R. v. Perkins, 2016 ONCA 588 at para. 32. In our view, the proviso is inapplicable in this case.

[19] The core issue at trial was the credibility of the complainant. While we acknowledge that the trial judge gave another reason for finding the complainant credible, the lack of embellishment was cited as one of two important reasons that enhanced the complainant’s credibility. We also note that the trial judge had some concerns about the complainant’s evidence, and we cannot say for certain that a conviction would have been inevitable had the judge not considered the lack of embellishment to be a positive factor going to the credibility of the complainant. As this court affirmed in Perkins, at para. 26, “as tracing the effect of the error on the verdict is necessarily a somewhat speculative exercise, any doubt as to the impact of the error must be resolved against the Crown”.

[20] The conviction appeal is allowed and a new trial on the sexual assault charge is ordered. In light of our conclusion on the conviction appeal, we do not reach the sentence appeal.

“Fairburn A.C.J.O.”

“J.C. MacPherson J.A.”

“S. Coroza J.A.”