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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. E.D., 2020 ONCA 633

DATE: 20201007

DOCKET: C66858

Lauwers, Huscroft and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E.D.

Appellant

Ravin Pillay, for the appellant

Lisa Fineberg, for the respondent

Heard by videoconference: September 22, 2020

On appeal from the conviction entered by Justice David Harris of the Ontario Court of Justice on January 17, 2019, with reasons reported at 2019 ONCJ 34, 153 W.C.B. (2d) 563, and the sentence imposed on May 1, 2019.

REASONS FOR DECISION

[1] The appellant was convicted of assault, two counts of mischief to property, and sexual assault against his former domestic partner, J.P. The prosecution proceeded against J.P.’s wishes, and despite an affidavit in which J.P. recanted her allegations against the appellant.

[2] The appellant raises several issues on appeal. He says that the trial judge:

1. erred in failing to consider whether the actus reus of sexual assault had been proven;

2. erred in failing to apply the principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 to J.P.’s exculpatory evidence;

3. misapprehended the evidence on J.P.’s motive to fabricate; and

4. erred in allowing the Crown to cross-examine J.P. at large.

[3] We conclude that the judge made no such errors. We note that two additional grounds set out in the factum were not pursued at the hearing. The appellant argued that the trial judge erred in failing to address inconsistencies in J.P.’s evidence and erred in admitting J.P.’s phone statement. We see no merit in these additional grounds.

[4] Accordingly, the appeal is dismissed for the reasons that follow.

Background

[5] J.P. called 911 on July 10, 2017 to complain that the appellant refused to stop contacting her after their relationship had ended. J.P. said that the appellant was threatening to report information to social services that could cause her to lose her subsidized housing.

[6] J.P. made several allegations against the defendant in that call. She claimed that E.D. had a firearm and had threatened to shoot her. However, she informed the police subsequently that she did not want to take the matter further and would not provide a statement.

[7] On July 31, 2017 Detective Whittaker called J.P. and taped their phone conversation. J.P. said that she felt unsafe with the appellant and that she wanted him to leave her alone. She described several acts of violence that the appellant committed against her, the most serious of which amounted to sexual assault. However, J.P. said she did not believe she was sexually assaulted. She did not mention a threatened shooting.

[8] Following this interview, J.P. recanted most of her allegations. She swore an affidavit stating that she felt pressured to give her statement to the police. With respect to the sexual assault, she swore that she consented at the relevant time. J.P. asked for criminal charges against E.D. to be withdrawn. Nevertheless, the Crown proceeded with the charges.

[9] J.P. testified at trial as the Crown’s witness. On cross-examination by the appellant’s trial counsel, she adopted the contents of her affidavit.

The trial judge did not fail to consider whether the actus reus of sexual assault had been proven

[10] This issue was the focus of the appellant’s submissions. The appellant argues that the trial judge erred in basing his decision on s. 273.1 of the Criminal Code, because J.P. was not unconscious or incapable of consenting during the assault. As a result, the trial judge failed to consider: 1) whether J.P. subjectively consented to the sexual activity in question and, in particular, did not believe that she had been sexually assaulted; 2) whether J.P. had given her full and informed consent to the activity; and 3) that the sexual activity stopped when J.P. withdrew her consent.

[11] This argument must be rejected.

[12] The trial judge considered J.P.’s statement to the police, her subsequent affidavit, her evidence at trial, and the differences between these things. As the Crown points out, J.P.’s statement to Detective Whittaker that she did not want to engage in intercourse at the time it was occurring was undisturbed at trial. Specifically, in answer to the question: “So did you want to have sex with him at that point?”, she answered: “At that point, no. But in other past incidents we would make up like that.” The trial judge was entitled to find, based on the evidence before him, that J.P. did not consent to the sexual activity while it was taking place, and that was sufficient to establish the actus reus of the offence.

[13] The trial judge did not frame this as a case of unconsciousness and did not fail to consider whether J.P. consented. His discussion of s. 273.1 came in the context of J.P.’s evidence that she was feigning unconsciousness and that the appellant knew this. The appellant did not testify so there was no evidence before the court as to his belief – no basis for a defence that he lacked mens rea on the basis of an honest but mistaken belief. This was the context in which the trial judge found, based on J.P.’s statement to the police and her evidence in court, that the appellant did not ask her if she was conscious and whether she wanted to engage in intercourse.

The trial judge did not fail to apply W.(D.) to J.P.’s exculpatory evidence

[14] Although the trial judge specifically referred to W.(D.) only at the outset of his decision, in the context of a video-recorded statement by E.D., we are satisfied that he properly instructed himself on the concept of reasonable doubt and applied that standard to all of the charges. This resulted in acquittals on one charge of assault, as well as charges of threatening death and criminal harassment. The trial judge was not required to set out the W.(D.) approach in respect of each conclusion.

[15] The trial judge found that despite J.P.’s attempt to absolve the appellant of responsibility, her evidence at trial corroborated the contents of her statement to Detective Whittaker to a significant degree. This finding was open to the trial judge and there is no basis to interfere with it.

The trial judge did not misapprehend the evidence as to motive to fabricate

[16] The trial judge did not misapprehend the evidence. He found it was clear that J.P. wanted the police to tell the appellant to stop contacting her and that she wanted no further involvement with the police once this goal was accomplished. She had to be coaxed by the police into making a statement and did so without any coercion or pressure.

[17] The trial judge did not improperly fail to give effect to the evidence concerning motive. He considered the evidence at length, including J.P.’s allegation in the 911 call that the appellant had threatened to shoot her, something she testified she did not remember saying. The trial judge considered this a “significant inconsistency” but ultimately rejected the evidence that J.P. was motivated to fabricate the allegations she made against the appellant in her conversation with Detective Whittaker. The trial judge found that J.P. wanted to stop the appellant from contacting her and had achieved that goal by the time she gave her statement to Detective Whittaker. He also found that she did not want further involvement with the police and did not want the appellant arrested. The appellant has not identified any misapprehension of the evidence that would entitle this court to interfere with the trial judge’s findings. His submissions invite us to revisit the trial judge’s credibility findings, but that is not our role on appeal. This ground of appeal must be rejected.

The trial judge did not err in allowing the Crown to cross-examine J.P. at large

[18] The appellant submits that the Crown’s cross-examination of J.P. went beyond the scope permitted by s. 9(2) of the Canada Evidence Act, R.S.C., 1985, c. C-5 and that the Crown wrongly questioned her at large concerning the alleged sexual assault, yielding evidence that the trial judge relied on in convicting the appellant. We disagree.

[19] Cross-examination is subject to the discretionary control of the trial judge and his decisions concerning the scope of cross-examination are entitled to deference. Although the scope of cross-examination under s. 9(2) is confined by the language of that section, which specifically refers to the statement, J.P.’s statement to Detective Whittaker was linked to her affidavit and it was not unreasonable to allow some latitude in cross-examination. It is noteworthy, but of course not determinative of the issue, that the appellant’s trial counsel (not Mr. Pillay) did not object to either the Crown’s s. 9(2) application or the Crown’s cross-examination. Trial counsel did not think it improper or prejudicial and neither do we.

[20] The appeal is dismissed.

“P. Lauwers J.A.”

“Grant Huscroft J.A.”

“Harvison Young J.A.”