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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2021-05-26 Docket: C67525

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

J.J. Appellant

Counsel: Colleen McKeown, for the appellant Katie Doherty, for the respondent

Heard: March 15, 2021 by video conference

On appeal from the conviction entered on April 18, 2019 by Justice Antonio Skarica of the Superior Court of Justice.

Reasons for Decision

Overview

[1] The appellant appeals from his conviction for sexual assault. He abandoned his appeal from sentence on December 9, 2020.

[2] The events leading up to the incidents in issue are not seriously in dispute. The complainant, then 15 years old, met the appellant through the complainant’s friend; the complainant and her female friend would spend time with the appellant and his friends, drinking alcohol and accompanying the appellant while he engaged in drug trafficking. In the evening of May 31 into June 1, 2017, the complainant was picked up in a taxi sent by the appellant to his house. The appellant and the complainant then called in the taxi for the appellant’s friend, Jordan. Along the way in the taxi to another friend’s house, Jordan gave the complainant some vodka to drink and she got drunk. The appellant said they would pick up the complainant’s female friend but that never happened. The appellant promised to pay for the complainant’s cab ride home at the end of the night. In the basement of the friend’s house, the complainant continued to drink alcohol straight from a bottle with the appellant and his three male friends. Marijuana was also being consumed.

[3] At one point, the complainant and the appellant went alone into a side room that had no doors or privacy and that contained a foul odour. Oral sex and sexual intercourse took place between them. The appellant abruptly left the complainant. He did not provide her the fare for the cab ride home. The complainant ended up spending the night in one of the friends’ garage before returning home the next morning.

[4] That morning, the complainant attended a previously scheduled doctor’s appointment and “blurted out” that she had been “raped”. A sexual assault evidence kit with a vaginal swab was completed. According to the unchallenged expert evidence at trial, the swab captured DNA that was 110 trillion times more likely to originate from the appellant than any other male. The complainant testified that she felt a vaginal tear and that she thought that “the nurse even said that”; however, the medical records disclosed no such tear and the nurse in question did not testify.

[5] The appellant was arrested for sexual assault. The police did not tell the appellant the victim’s name. After his arrest and on his way to the police station in the back of the police cruiser, the appellant angrily burst out that “The bitch is angry because I wouldn’t pay her the $30 cab fare”, and made disparaging remarks about the complainant’s race and physical appearance without naming her. When subsequently interviewed by the police about the complainant’s allegations, the appellant denied knowing the complainant or anyone with her name living in the area. He also denied that the alleged sexual activities took place. Following the disclosure of the DNA results, the appellant admitted at trial knowing and having sexual relations with the complainant but maintained that they were instigated by the complainant and entirely consensual.

[6] The accounts by the complainant and the appellant as to how the incident unfolded are dramatically different. The complainant testified that the appellant led her into the basement side room and forced her to have oral sex and sexual intercourse with him against her repeated and loud protests. The appellant testified that the complainant invited him into the side room and initiated sexual contact, at first oral sex at his request, followed by vaginal intercourse at her request.

[7] The trial judge rejected the appellant’s version of events, stating it was replete with contradictions, lies and improbable scenarios. He did not believe the appellant’s evidence that he had sex with the complainant at her request and with her consent. Moreover, he was not left with a reasonable doubt. On the basis of the evidence that he did accept, including the core of the complainant’s evidence concerning the sexual assault, he found the appellant guilty beyond a reasonable doubt.

[8] The appellant’s appeal centres on the trial judge’s treatment and analysis of the trial evidence and his credibility assessments in the context of the requisite analysis under R. v. W. (D.) , [1991] 1 S.C.R. 742. He says the trial judge made several reversible errors that warrant a new trial.

[9] For the reasons that follow, we do not agree that the trial judge made the alleged errors and we would dismiss the appeal. We shall deal with each of the appellant’s issues in turn.

Analysis

(i) Assessment of the complainant’s evidence

[10] First, the appellant says the trial judge failed to reconcile material inconsistencies and deliberate falsehoods in the complainant’s evidence and incorrectly discounted them because of her age. He argues that the trial judge erred in giving the complainant the same testimonial latitude afforded to young children when considering her credibility, and that he failed to resolve the important credibility and reliability concerns with her evidence.

[11] We disagree.

[12] The trial judge was aware of and specifically addressed the major inconsistencies and contradictions in the complainant’s evidence. He noted that it was an “unusual case where there are a number of concerns with both the evidence of the complainant and the [appellant]” and rhetorically asked himself “what am I to do with the inconsistencies and contradictions regarding the testimony of the complainant, A.Y.?”

[13] While listing the various discrepancies, the trial judge concentrated on the following: the complainant’s statement that she suffered a vaginal tear from the assault when the medical evidence revealed no physical injuries; the complainant’s evidence that she was screaming throughout the assault in a house full of people but no one came to her assistance; and her initial false denials about having oral sex with the appellant and previously having sexual contact with a friend of the appellant. The trial judge was not required to address every inconsistency in the complainant’s evidence but was entitled, as he did, to focus on the ones that he expressly noted were the most significant. Importantly, although he observed that “a deliberate falsehood would be very telling against a complainant’s testimony”, he explained why, in the light of all the evidence, he accepted the complainant’s explanations for the identified problems with her evidence, and why those issues did not cause him to reject her account of the sexual assault.

[14] The trial judge noted the inconsistency in the evidence about being injured during the sexual assault. However, by the time of the trial, it was no longer in dispute that the appellant had had sexual intercourse with the complainant. After the appellant’s DNA was discovered in the complainant’s vagina, the appellant admitted having sexual relations with her but maintained they were consensual. While the presence of a physical injury might indicate a lack of consent, the absence of an injury would not have indicated consent. Placed in context, it is not surprising that the trial judge was not troubled by the discrepancy relating to whether the nurse had told the complainant she had a vaginal tear.

[15] The trial judge also expressly considered the complainant’s evidence that she screamed for help and no one came to her assistance. He was not satisfied that the people present would come to her aid, and he was not prepared to assume without evidence that others in the home would have heard her. We would also note that one of the appellant’s friends did come to the room. We see no reversible error in the trial judge’s treatment of the inconsistencies in the complainant’s evidence.

[16] Moreover, in addressing the frailties in the complainant’s testimony, the trial judge properly took into account that the complainant was only 15 at the time of the sexual assault and 17 when she testified at trial. He considered the Supreme Court’s guidance for dealing with young witnesses in R. v. B. (G.) , [1990] 2 S.C.R. 30, R. v. W. (R.) , [1992] 2 S.C.R. 122, and R. v. François , [1994] 2 S.C.R. 827. While age played a role in his credibility and reliability analysis, the trial judge found that the difficulties with the complainant’s evidence were a function of her shyness, immaturity, lack of education, strict religious upbringing in an unsupportive family, and feelings of embarrassment, rather than her age alone. He concluded that these issues did not fatally undermine the complainant’s evidence.

[17] We do not accept the appellant’s arguments that the trial judge extended too much testimonial latitude to the complainant on account of her immaturity, and that immaturity “is not analogous to a child’s inability to remember details and communicate with specificity”. We see no error in the trial judge’s approach to the complainant’s immaturity, which focused on when and how she revealed material information rather than how she perceived the events in question. For instance, while the complainant initially denied having oral sex with the appellant, the trial judge found that her later admission of oral sex was corroborated by the forensic evidence and by the appellant’s own testimony. The trial judge attributed her earlier falsehood to her immaturity and embarrassment, leaving the core of her evidence intact.

[18] These findings were open to the trial judge to make on the record before him and reveal no reversible error. They were part and parcel of his overall consideration and weighing of the evidence. It is worth repeating the proposition, also mentioned by the trial judge, that a trier of fact may accept some, all or none of a witness’ evidence. Here, the trial judge accepted the core of the complainant’s evidence about the sexual assault. We see no basis to interfere.

(ii) Reliance on stereotypes

[19] The appellant argues that the trial judge incorrectly relied on stereotypes and assumptions about young women’s behaviour in assessing the complainant’s evidence.

[20] We do not read the trial judge’s reasons in this way.

[21] The trial judge’s reasons explain why he found that the appellant’s version of events was implausible in the particular context of this case. Specifically, he found that the complainant was a young, shy, immature girl. The basement side room reeked of urine, had no door, and was immediately adjacent to the room where the appellant’s friends were drinking. It was in the context of these particular circumstances and his assessment of the evidence as a whole that the trial judge found it implausible that the events would occur as described by the appellant.

[22] The trial judge did not reject the appellant’s account based on the sexual stereotype that no woman would initiate sexual contact in the circumstances described, but because the appellant’s account made no sense in the specific context of the case. Having observed the witnesses, and the complainant in particular, it did not ring true to the trial judge that this particular complainant would demand sex in the manner described by the appellant. He was not relying on pre-conceived views about how sexual assault victims would behave but on how the complainant behaved.

[23] The trial judge was entitled to make these findings on the record before him. We see no basis for appellate intervention.

(iii) Treatment of the appellant’s post offence conduct

[24] The appellant submits that the trial judge erroneously analyzed his post‑offence conduct through the prohibited lens of propensity reasoning. This conduct included the post-offence text he sent to a friend saying: “Fuck all. I ditched that black girl” and “I almost knocked her out”. The appellant argues that the trial judge impermissibly used his “callous” behaviour following the incident, including abruptly leaving the house, stranding the complainant without a cell phone and a ride home, and texting friends that he had “ditched” the complainant, as evidence that the incident was non-consensual.

[25] Again, we do not read the trial judge’s reasons in this way. The trial judge was entitled to consider the appellant’s behaviour following the incident as part of his credibility analysis of the evidence given by the appellant and the complainant. He did not use the appellant’s admitted behaviour following the incident to conclude that the appellant was more likely to have sexually assaulted the complainant because of his callous character. Rather, the trial judge found that the appellant’s poor treatment of the complainant following the incident was more consistent with the complainant’s evidence concerning the appellant’s treatment of her before and during the incident, and inconsistent with the appellant’s version of a spontaneous sexual encounter initiated by the complainant.

[26] We see no error in the trial judge’s treatment of this evidence.

Disposition

[27] Accordingly, the appeal is dismissed.

“Paul Rouleau J.A.”

“S.E. Pepall J.A.”

“L.B. Roberts J.A.”