Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210629 Docket: C68501

Rouleau, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

B.W.S. Appellant

Counsel:

B.W.S., acting in person Matthew Gourlay, appearing as duty counsel with respect to the appeal against conviction Michael Fawcett, for the respondent

Heard: January 12 and 13, 2021 by video conference

On appeal from the convictions entered on March 12, 2020 and the sentence imposed on June 23, 2020 by Justice Calum U. C. MacLeod of the Superior Court of Justice.

B.W. Miller J.A.:

Overview

[1] The complainant and the appellant were in an unstable and tempestuous intimate relationship. During an argument on May 13, 2019, the complainant refused the appellant’s demand for sexual intercourse, and the appellant responded with violence towards her and threats of greater violence against both her and her young daughter. The police became involved. The next day the two reconciled and the complainant told police she did not want to press charges. The reconciliation did not last, and there were further incidents of violence and threats on the part of the appellant.

[2] Ultimately, the appellant was convicted of multiple offences including assault, sexual assault, and uttering threats. He received a custodial sentence of 26 months, less a credit of 13.9 months, leaving a total sentence of 12 months and three days’ incarceration. The appellant appeals against conviction and sentence. For the reasons that follow, I would dismiss the appeals.

Background

(1) The First Incident

[3] The appellant had been recently released from jail and was living itinerantly, sometimes at the complainant’s residence.

[4] On May 12, 2019, following an argument, the appellant left to spend the night somewhere else.

[5] Early the next morning, the appellant texted the complainant to ask if he could come back to patch things up. She agreed. The appellant arrived at about 6:40 a.m. He had something to eat and then showered. What happened afterwards is contested.

[6] On the complainant’s evidence, the appellant came upstairs to the bedroom and told the complainant they were going to have sex. She said no. The appellant told her she was alone and there was nothing she could do about it, pinned her to the bed, began groping her, and attempted to reach under her clothes. She was able to push him away and they exchanged heated words. The complainant told him to leave and that she would report him to the police. The appellant pushed her against a door, reminded her that he knew where her daughter went to daycare, and threatened to kill them both if she went to the police. He left.

[7] The complainant phoned her brother and told him that she had been sexually assaulted and threatened. Her brother called the police. The police arrived and the complainant provided a statement. After the complainant and the appellant reconciled the next day, the complainant contacted the police and told them she no longer wished to press charges. She did not, however, recant her allegations.

[8] The appellant agreed with the complainant’s testimony that he and the complainant argued on May 13, but claimed that he then left without incident to meet his probation officer. He testified that the assaults and threats described by the complainant never happened and were concocted by her to help get rid of him. He argued that she had recanted when she told police she did not want to press charges.

[9] There were two further incidents after the post-May 13 reconciliation that led to further criminal charges.

(2) The Second Incident

[10] On June 9, 2019, some friends of the complainant were at her home counselling her to end the relationship. The appellant was downstairs, listening to what was going on. The appellant was angered by what he overheard, armed himself with a hammer, and went to push his way into the bedroom. A friend of the complainant had been standing outside the bedroom, so that the complainant and the others could speak privately, and blocked the appellant. During what the trial judge described as a “fist fight”, the appellant punched the friend multiple times in the face and head before he was subdued.

(3) The Third Incident

[11] Two days later, the complainant was at the mall with friends. While there, she received threatening text messages from the appellant. She contacted the police.

[12] The police asked the appellant to turn himself in. The appellant responded that he would never be apprehended, destroyed his cell phone, stole a vehicle, and fled. He was subsequently apprehended.

Issues on Appeal

[13] The appellant raises a single issue on his appeal from conviction: that the trial judge erred in his analysis under R. v. W.(D.), [1991] 1 S.C.R. 742, by failing to find that there was an inconsistency between the complainant’s evidence and the evidence of her brother, and not finding that this inconsistency was sufficient to raise a reasonable doubt that the appellant had assaulted, threatened, and sexually assaulted the complainant on May 13, 2019.

[14] The appellant also appeals the sentence imposed, on the basis that it was excessive and that he ought to have received credit for harsh conditions imposed due to COVID-19.

Analysis

(1) Appeal Against Conviction

(a) Overview

[15] The appellant argues that the trial judge failed to resolve an inconsistency between the complainant’s evidence and the evidence of her brother as to the timing of events on May 13. Specifically, the appellant argues that the chronology of events provided by the complainant is inconsistent with the objective evidence of the timing of three phone calls between the complainant and her brother. He claims the discrepancy was not satisfactorily resolved by the trial judge and it ought to have raised a reasonable doubt.

[16] It was undisputed at trial that the appellant arrived at the complainant’s residence at 6:40 a.m. No one testified as to precisely when he left. The complainant testified that the sexual assault began about two hours after he arrived, which would have been approximately 8:40 a.m. The appellant started acting disrespectfully and she told him to leave. The complainant testified that the appellant said no and that they were going to have sex. The sexual assault began, followed by the appellant pushing the complainant against the bathroom door and hitting her. She yelled at him to get him to go downstairs. Once they were downstairs, she told him she wanted to call the police. He told her if she did, to remember that he knew where her daughter’s daycare was and that he would hurt her. The complainant testified that they both went downstairs and “eventually” the appellant left, although she testified repeatedly that she could not say when that was.

[17] The complainant testified that after the appellant left, she was frantic about what to do. He had said he would harm her daughter if she went to the police. She decided to phone her brother. She said it was a quick two-minute call that ended with her brother telling her he would phone 911, which he did.

[18] Records showed that the complainant first called her brother at 9:53 a.m. Her brother testified this was a five-minute call in which the complainant said she had an argument with the appellant, that she was done with him, and that she was “looking at kicking him out and removing him from the home.” There was no discussion in this call about the complainant having been sexually assaulted.

[19] Records showed the complainant called her brother again at 11:40 a.m. The brother testified that he was busy with his children and did not notice the call.

[20] About an hour later – at 12:55 p.m. – the brother returned her call. He testified that, although she was not sobbing, she was hyperventilating and obviously upset. She told him that the appellant had sexually assaulted her and threatened her and her daughter. Her brother testified that he became upset, ended the call, and immediately called 911.

[21] The complainant, when asked on cross-examination about the first call to her brother, had no memory of it. She did not deny making it but did not remember doing so and could not testify as to what was said. She only testified about the 12:55 p.m. call, in which she first disclosed the sexual assault and threats.

(b) The Trial Judge Did Not Err

[22] The question on appeal is whether there is an inconsistency between the evidence of the brother and the complainant, and whether this ought to have given rise to a reasonable doubt. For the reasons that follow, I do not agree that there is either a conflict in the evidence or a reversible error.

[23] The trial judge accepted the complainant’s evidence as truthful and credible and concluded that the sexual assault and threats occurred as the complainant described. He rejected the argument that she had recanted: she never said the events had not occurred when she told police she did not want to press charges. Although there were some inconsistencies brought out in her cross-examination, they were explained by the complainant. The trial judge accepted her evidence about the assault. He rejected the argument that the timing of the phone calls between the complainant and her brother and whether she was upset cast doubt on her account. His treatment of this issue is the focus of the conviction appeal.

[24] The complainant did not venture any definitive timing of events, other than to state that she thought the arguments leading to the sexual assault, assault, and threats began about two hours after the appellant arrived. This would be approximately 8:40 a.m.

[25] If that was the case, then it would have made sense that, by the time the complainant made the first call at 9:53 a.m., the assaults had already taken place and the appellant had likely left. And yet the brother’s evidence and the timing of his call to 911 suggest the complainant did not disclose the sexual assault and threats until the 12:55 p.m. call.

[26] The appellant argues that this delay in reporting ought to have raised a reasonable doubt that he committed the acts alleged. How could the complainant be calm in a conversation with her brother at 9:53 a.m. – in the immediate aftermath of a sexual assault – and not disclose it, or the threats to harm her daughter, but then be hyperventilating at 12:55 p.m.?

[27] The trial judge noted the argument but was undisturbed by it. He did not make a finding of when the appellant left, or whether the sexual assault took place before or after the 9:53 a.m. call. The appellant, for his part, did not give evidence about when he left and was unable to elicit evidence from his parole officer that he must have left by 9:00 a.m. in order to make it to an appointment they had for the early afternoon.

[28] On the trial judge’s understanding of events, it was entirely consistent with the evidence either that the appellant assaulted and threatened the complainant and left before the complainant made the first call, or that the incident had taken place after the first call. But, as explained below, even if he had accepted that the appellant had left by 9:00 a.m. – which he found he did not have to decide - it would not have been inconsistent with the complainant’s evidence or raised a reasonable doubt.

[29] The complainant did not testify that she disclosed the incident to her brother as soon as it happened – which would have meant that she disclosed it on the first call - only that she disclosed it after it happened. She was consistent on cross-examination that she did not remember the first call with her brother, did not know at what time the appellant left, and would not estimate how much time had passed between the incident complained of and when the appellant left. His departure was not immediate.

[30] The trial judge was not prepared to draw an inference that someone in the circumstances of the complainant who had experienced a sexual assault would necessarily disclose it immediately to her brother, or that she would present on the phone as more upset at 9:53 a.m. than at 12:55 p.m., assuming the incident had taken place prior to 9:53 a.m. He did not find that the timing of the two phone calls, the content of those calls, or her demeanour on those calls was inconsistent with her evidence as to the sexual assault, assault, and threats. None of this evidence raised a reasonable doubt in his mind.

[31] I see no reason to interfere. Contrary to the appellant’s argument, there was no material inconsistency between the evidence of the complainant and her brother that the trial judge had to resolve: they agreed that there was a phone call in which she disclosed a sexual assault. It was open to the trial judge to conclude that “the sequence of events or the manner in which the complainant evidenced distress do not damage her evidence or raise any doubt in my mind”, and to reject the argument that the complainant would necessarily have disclosed the sexual assault immediately to her brother. The factual findings the trial judge made, and the inferences he drew from them were all open to him, and he made no reversible error in his W.(D.) analysis.

(2) Appeal Against Sentence

[32] In R. v. Lacasse, [2015] 3 S.C.R. 1089, at para. 11, a majority of the Supreme Court concluded that “except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.” The appellant has not identified any basis upon which it would be appropriate to interfere with the sentence imposed. The sentence is not demonstrably unfit and the trial judge made no legal error or error in principle.

[33] The trial judge did not err in emphasizing denunciation and specific deterrence. As the trial judge explained, the appellant has a history of sexual offences and committed the offences that are the subject of this appeal while on probation. The trial judge was unimpressed with the appellant’s argument attempting to minimize the sexual assault as a simple touching. As the trial judge noted, it was sexual touching accompanied by a threat of forced intercourse, in circumstances where the complainant was fully aware of the appellant’s history of forcing intercourse on others.

[34] I reject the appellant’s argument that he was thereby unfairly penalized for having been honest with the complainant by disclosing his history of sexual assault. Being honest with an intimate partner about his discreditable past was the least he could have been expected to do. He is not entitled to a lesser sentence because the experience would have been less terrifying for her if she had never known what he had done to other women.

[35] With respect to the argument that the appellant ought to receive enhanced credit due to harsh conditions resulting from institutional efforts to combat COVID-19, the appellant has not argued any particular impact that COVID-19 measures have had on him. I would dismiss this ground of appeal.

Disposition

[36] I would dismiss the appeals against conviction and sentence.

Released: June 29, 2021 “P. R.” “B.W. Miller J.A.” “I agree. Paul Rouleau J.A.” “I agree. K. van Rensburg J.A.”