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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210422 DOCKET: C67695

Fairburn A.C.J.O., Doherty and Sossin JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

V.E. Appellant

Counsel: Cassandra Richards, for the appellant Gregory Furmaniuk, for the respondent

Heard: April 14, 2021 by video conference

On appeal from a conviction on a charge of sexual assault entered by Justice Marc D’Amours of the Ontario Court of Justice, dated April 1, 2019.

Reasons for Decision

[1] The appellant appeals his conviction on a charge of sexual assault. At the end of counsel’s submissions, the court dismissed the appeal with reasons to follow. These are those reasons.

[2] It is not necessary to go into the details of the evidence. This was essentially a two-witness case. The complainant testified she did not consent to sexual intercourse. The appellant testified the complainant consented and only told him to stop after he had ejaculated. The outcome at trial turned on the trial judge’s assessment of the credibility of the appellant and the complainant, and the proper application of the burden of proof to those credibility assessments.

[3] The trial judge’s reasons demonstrate he appreciated the issues, the position of the parties, the centrality of his credibility assessments, and the importance of the burden of proof. He structured his reasons to a large degree to track the submissions of trial counsel. He also specifically directed himself on the three-step approach set down in R. v. W. (D.), [1991] 1 S.C.R. 742.

[4] The trial judge began with a consideration of the appellant’s evidence. After a thorough review of that evidence, the trial judge said, at p. 13:

Given all these contradictions, the testimony of the defendant cannot be believed. His testimony does not raise a reasonable doubt.

[5] Having completed steps one and two of R. v. W.D., the trial judge moved to the third step which, on the evidence adduced in this case, turned entirely on his assessment of the credibility of the complainant. Once again, the trial judge thoroughly reviewed the evidence. He ultimately determined the complainant was credible and the Crown had proved its case beyond a reasonable doubt.

[6] On appeal, the appellant argues the reasons are so deficient as to constitute an error in law. In her oral submissions, counsel advanced three arguments in support of this submission. She claims the trial judge:

• summarized, but did not analyze the evidence and failed to make necessary findings of fact;
• failed to address the argument that the complainant had a motive to fabricate her allegation; and
• made a finding that the appellant admitted wrongdoing in a text message when that finding could not be justified on the totality of the relevant evidence.

[7] As the appellant acknowledges, the trial judge did thoroughly review the evidence. The reasons did not, however, stop there. The trial judge provided cogent, detailed reasons for rejecting the appellant’s evidence and concluding it could not raise a reasonable doubt. Those reasons are supported by the evidence.

[8] The trial judge also explained why he accepted the complainant’s evidence, albeit in a somewhat less detailed manner. In the course of reviewing the complainant’s evidence, the trial judge referred to and explained why he rejected various arguments that had been advanced on behalf of the appellant, challenging the complainant’s credibility.

[9] In the circumstances, it was not necessary for the trial judge to make discrete findings of fact in relation to matters other than whether the sexual conduct was consensual. The trial judge’s credibility findings, which are adequately explained in his reasons, lead inevitably to a finding the complainant did not consent to sexual intercourse. On reading these reasons, there is no doubt why the trial judge convicted the appellant.

[10] The second submission arises out of the trial judge’s failure to deal with the defence argument that the complainant had a motive to fabricate an allegation of sexual assault against the appellant. The trial judge did not deal with this argument in his reasons. Given the credibility findings, however, it is implicit that the trial judge rejected the argument that the complainant decided to fabricate a false allegation of sexual assault to get the appellant out of her home.

[11] A trial judge is not required to address each and every argument in the reasons for judgment. On the evidence adduced in this case, the argument the complainant fabricated the allegation of sexual assault to get the appellant out of her home, made little sense. She testified she called the police because she was physically afraid of the appellant and wanted him out of her home. When she called, she made no allegation of sexual assault and, on her evidence, did not intend to make any such allegation. The complainant first referenced the sexual assault when questioned by the police after they had arrived. The evidence concerning the manner in which the allegation of sexual assault was made to the police is not consistent with the complainant having formulated a plan to call the police and falsely accuse the appellant of sexual assault.

[12] In the course of her able submissions in this court, counsel suggested a variation on the argument put forward at trial. She suggested the complainant may have formulated the false allegation after the police arrived to buttress her request that the police remove the appellant from the home. This suggestion was not put to the complainant and does not appear to have been part of the defence theory at trial. It is not surprising the trial judge did not advert to this possibility in his reasons.

[13] The final point deals with the trial judge’s treatment of a text exchange between the appellant and the complainant, during which the appellant appears to acknowledge prior wrongs done to the complainant. The appellant argues the trial judge took this as an admission by the appellant in respect of the sexual assault charge. He argues not even the complainant put that interpretation on the appellant’s text message.

[14] We do not read the trial judge’s reasons as making a finding of an admission with respect to the specific events giving rise to this charge. Rather, he took the appellant’s words as an admission of having treated the complainant in an abusive manner. That admission was relevant both to whether the sexual intercourse was consensual, and the appellant’s credibility.

[15] In summary, the trial judge’s reasons adequately served their intended purposes. They explained why the trial judge reached the verdict he did, and they sufficiently exposed the trial judge’s reasoning to effective appellate review.

[16] The appeal is dismissed.

“Fairburn A.C.J.O.”

“Doherty J.A.”

“L. Sossin J.A.”

[1] The appellant pleaded guilty to other charges and was acquitted on still other charges. None of those charges are before this court.