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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 2021-09-27 Docket: C68616

Before: Watt, Benotto and Trotter JJ.A.

Between: Her Majesty the Queen Respondent

And

Hussein Kelkas Appellant

Counsel: Brandon Crawford, for the appellant Jessica Smith Joy, for the respondent

Heard: September 23, 2021 by video conference

On appeal from the conviction entered on March 4, 2020 by Justice M. O’Bonsawin of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of three unrelated counts of sexual assault with respect to two complainants: A and G. Consent was the issue at trial.

[2] Complainant A alleged that she was sexually assaulted by the appellant on two occasions. On the first, anal penetration occurred and on the second, vaginal penetration occurred. Complainant G alleged that, on one occasion, she was sexually assaulted by the appellant when vaginal penetration occurred without her consent.

[3] The appellant’s version of events largely did not contradict A’s evidence except with regards to the issue of consent. With regards to the first incident, the appellant testified that the complainant was the one who grabbed his penis and attempted to insert it in her anus to no avail. With regards to the second incident, the appellant testified that the kissing, oral sex and intercourse were consensual and that A said, “be gentle, please”.

[4] Likewise, the appellant’s version of events largely mirrored that of G. The appellant, however, testified that on the day of the incident he brought her to a grocery store and gave her $20 to purchase condoms. When they got home, they went straight to her bedroom and began making out on the bed. The appellant testified that G took his clothes off and refused to turn the lights on. She proceeded to put a condom on him, and they had sex for 5-10 minutes. According to the appellant, he was “very turned off” by the situation and pretended to ejaculate because he was “not into it”. He got dressed, left and never saw her again.

[5] The trial judge found that both complainants were forthright and did not overstate the violence or exaggerate the sexual assault and were credible. On the other hand, she found the appellant’s evidence was largely incongruent and incredible.

[6] The appellant appeals on the basis that the trial judge:

(i) misapprehended the evidence of complainant A; (ii) impermissibly used judicial notice to determine credibility; (iii) used the complainants’ absence of exaggeration to enhance credibility; and (iv) made a finding of fact without evidence.

Misapprehension of evidence

[7] The appellant submits that the trial judge erred by misapprehending A’s evidence with respect to the second incident, which A said occurred in the back seat of a car. The appellant alleges that the trial judge failed to consider A’s reasons for getting into the back seat. During her examination-in-chief A said that she got into the back seat because the appellant told her to, she was intimidated and told him she would not have sex with him. During cross-examination she was referred to her police statement and acknowledged that she was agreeable to some level of intimacy and that oral sex began but she said, “that’s enough”. These clarifications did not change the core of her testimony that she repeatedly said she would not have intercourse. The trial judge did not misapprehend this evidence. It was open to her to accept A’s evidence on this point.

Judicial notice

[8] The appellant submits that the trial judge engaged in impermissible use of judicial notice resulting in stereotyping to determine credibility. He refers to the trial judge’s rejection of his evidence that he was “turned off” by G. The trial judge found this evidence “incredible”.

[9] Impermissible use of judicial notice amounting to stereotyping occurs when a trial judge draws inferences untethered to the evidence, see R. v. Steele, 2021 ONCA 186, 154 OR (3d) 721. That did not occur here. The trial judge based her conclusion on the evidence that the appellant said he was attracted to G and that he had taken her to the store to buy condoms. There were also several factors relied on by the trial judge which informed her determination as to credibility including the appellant’s history of lying.

Reference to complainants’ lack of exaggeration

[10] The trial judge noted the lack of embellishment in the evidence of each complainant. The appellant submits that the trial judge purported to enhance the credibility of the complainants because they did not exaggerate the events giving rise to the assault.

[11] Unlike the trial judge in R. v. Alisaleh, 2020 ONCA 597, the trial judge did not use this finding to bolster the credibility of each victim. She gave detailed reasons as to why she found each complainant to be credible. The comment about the lack of embellishment was made in passing and was not used as a makeweight for credibility.

Finding of fact in the absence of evidence

[12] The trial judge made a statement that there was no collusion between the complainants because they did not know each other. The appellant submits that the trial judge made a finding that the two complainants did not know each other when the evidence did not support this fact.

[13] The trial judge’s statement that there was an absence of evidence of collusion accurately reflected the record: no evidence was adduced to this regard. The appellant does not challenge the similar fact ruling and we see no merit in this submission.

[14] For these reasons the appeal is dismissed.

“David Watt J.A.”

“M.L. Benotto J.A.”

“Gary Trotter J.A.”