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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220328 DOCKET: C68147
Strathy C.J.O., Coroza and George JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
K.B. Appellant
Counsel: Myles Anevich, for the appellant Stephanie A. Lewis, for the respondent
Heard: March 15, 2022 by video conference
On appeal from the conviction entered on September 12, 2019, with reasons reported at 2019 ONSC 5287, and from the sentence imposed on December 2, 2019, with reasons reported at 2019 ONSC 6953, by Justice Patrick J. Monahan of the Superior Court of Justice.
REASONS FOR DECISION
Introduction
[1] The appellant appeals his conviction on four counts of sexual assault of S.F., a 24-year-old woman who lives with an intellectual disability (also referred to in these reasons as the “complainant”). He was acquitted of unlawful confinement. He was sentenced to imprisonment of five years concurrent on each count, together with several ancillary orders.
[2] The appellant raises four grounds of appeal, discussed below. He acknowledges that his request for leave to appeal sentence is moot, as the sentence has been served. For the reasons below, we dismiss the conviction appeal and dismiss the motion for leave to appeal sentence.
Factual Background
[3] The following summary provides a backdrop for the consideration of the issues. Further detail will be added as we consider each issue.
[4] S.F. was described by her mother, A.F., as having the intellectual capacity of a young child. She reads at a grade one or two level. She has limited fine motor skills and has difficulty performing some of the tasks of daily living, such as bathing herself and preparing her own meals. In spite of these challenges, she was able to complete high school at age 21 and has participated in an adult training program at a community college.
[5] On December 18, 2017, A.F. took S.F. grocery shopping. After an argument over S.F.’s cell phone use, A.F. took her phone away. Angered by this, S.F. slipped out of the store and managed to get onto a bus, intending to visit her aunt. Unfortunately, she got lost along the way. Her desperate family did not see her again for four days. S.F. claimed that throughout those four days K.B. kept her in his residence, where he abused her, sexually, physically, and verbally.
[6] S.F. said she met K.B. on the bus. After inquiring about her personal details and being told that her parents were in Africa (which was untrue), he got off the bus with her, and walked with her to his home. According to S.F., he gave her a hamburger to eat after they arrived at his home. He then told her to take off her clothes and to get into the shower, where he forced her to have sexual intercourse.
[7] S.F. testified that sexual assaults in the shower and other forms of sexual assault and physical abuse continued over the next three days. Each day at around 7:00 a.m., when he went to work, the appellant would leave her in the bedroom, with the door shut. She said she was unable to open the door and remained in the bedroom the entire day. The appellant returned from work each day, late at night and drunk. In addition to repeatedly sexually assaulting her, including sucking and biting her breasts, the appellant bit her arm and face, pushed her down onto the ground, and threatened her with a knife. He verbally abused her, calling her a “fucking bitch” and “retarded”, and told her she was ugly and no one liked her. He fed her fish-shaped “poison candy” which had the effect of sedating her. Throughout, the complainant told him to stop, and said that these actions were contrary to her Muslim faith.
[8] S.F. testified that on the fourth day, December 21, 2017, the appellant saw a television broadcast reporting that she was missing. He became angry, threw his cell phone at her, and left the apartment. She called her uncle, who contacted the police. Some time later, the police called the appellant’s cell phone and he told them where he lived. The police went to his apartment, retrieved S.F., and returned her to her family. Police told S.F.’s family that “the guy looked after her”, or words to that effect.
[9] After S.F. was returned to her family, her cousin, I.F., who was A.F.’s niece, became suspicious that something had happened to S.F. while she was away from home. In response to I.F.’s questions about whether K.B. had done specific things to her, S.F. replied affirmatively. S.F. was taken to hospital, where a sexual assault examination revealed no bruises or marks. Forensic examination of S.F.’s underwear revealed a single male DNA profile, which was 1,080 times more likely to belong to the appellant than any unknown, unrelated male.
Trial Judge’s Reasons
[10] The only witnesses at trial were S.F. and her mother, A.F. The appellant did not testify.
[11] The defence did not suggest that the accused had a reasonable but mistaken belief that the complainant consented to sexual activity. Rather, the defence position at trial was that none of S.F.’s allegations ever happened during the four days she was at his residence. The appellant acknowledged through counsel that the DNA on S.F.’s underwear belonged to him.
[12] The only issue at trial was whether the Crown had established, beyond a reasonable doubt, that the events described by the complainant had actually occurred.
[13] The Crown and defence agreed that S.F.’s evidence should be assessed in the same way as the evidence of a child. The trial judge found that S.F.’s testimony was direct and straightforward, notwithstanding its challenges.
[14] One such challenge was the complainant’s tendency to agree with a suggestion by counsel, particularly on cross-examination, but then disagree with it and clarify her evidence once the point was pursued or discussed further. The trial judge found that this did not undermine her evidence, in view of her intellectual challenges. Nor was her evidence undermined because she was unable to recall certain events and parts of her recollection had to be refreshed by her police statement and her preliminary inquiry evidence. Again, because of her challenges and because she was testifying about events that had occurred 18 months earlier, her memory failings did not detract from her evidence. Where there were apparent inconsistencies between her trial testimony and prior statements, the prior statements were sufficiently vague or open to interpretation that the purported inconsistencies did not undermine her credibility.
[15] The defence suggested that S.F.’s evidence was tainted by leading questions asked by I.F. after she returned home. The trial judge found this assertion was speculative. We address this issue in more detail below.
[16] Finally, the defence suggested that the complainant’s account of the assaults was “oddly repetitive”, which the trial judge found was not unreasonable given her intellectual challenges and the time that had passed since the events had occurred. S.F. had remained consistent on the core allegations of the sexual assaults.
[17] The trial judge accepted S.F.’s evidence concerning the sexual assaults and the absence of consent. He found that on the totality of the evidence, the Crown had proven the sexual assaults beyond a reasonable doubt. Despite minor inconsistencies in her evidence, the complainant never wavered in her evidence about the sexual assaults, which was generally consistent and credible. The trial judge convicted the appellant on four counts of sexual assault, observing that there was no innocent explanation for him having kept a vulnerable adult at his residence for four days without telling anyone and that the presence of his DNA on S.F.’s underwear supported a finding of sexual assault. As discussed below, the trial judge acquitted the appellant on the unlawful confinement count.
Grounds of Appeal
[18] The appellant raises four grounds of appeal of the conviction:
(a) the trial judge erroneously discounted material inconsistencies and deliberate falsehoods in the complainant’s evidence due to her mental age;
(b) the trial judge misapprehended the evidence of potential tainting of the complainant’s evidence by I.F.;
(c) the trial judge made findings that were not supported by the evidence; and
(d) the trial judge failed to turn his mind to inferences inconsistent with guilt, with the result that the verdict was unreasonable.
[19] Only the first two grounds were advanced in oral submissions. We will nevertheless consider all grounds.
Analysis
(a) Erroneously discounting inconsistencies and falsehoods in the complainant’s evidence
[20] The appellant acknowledges that the trial judge’s approach to the assessment of S.F.’s evidence was “likely correct”, but asserts that he failed to critically assess her evidence and excused blatant inconsistencies, improbabilities and deliberate falsehoods in her evidence, which could not be dismissed because of her mental age. For example, she repeatedly claimed the appellant had intercourse with her in the bedroom, yet also claimed she was fully clothed when it occurred. Her evidence was “oddly repetitive”, and she claimed that the same events were repeated day after day. Although she claimed that the appellant repeatedly bit and stabbed her, there was no evidence of marks, bruising or wounds on her body.
[21] We do not accept these submissions. The trial judge observed that S.F. testified in a direct and straightforward manner. The record supports his observation to counsel during submissions that she spoke in a direct and spontaneous way and her evidence was detailed. We agree with the respondent that this is a case in which the trial judge’s opportunity to see and hear the complainant’s evidence as it unfolded, both in chief and in cross-examination, gave him an inestimable advantage in the assessment of her evidence. In reading the record of her evidence, which was admittedly confusing at times, we cannot hope to have the same appreciation of her evidence or be in a position to assess the credibility and reliability of that evidence. It was open to the trial judge to assign inconsistencies in the evidence the weight that he did, and his approach was in line with the well-established approach to the evidence of child witnesses. His credibility findings are entitled to significant deference: R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, at para. 81; R. v. K.C., 2021 ONCA 401, 157 O.R. (3d) 161, at para. 75, per Jamal J.A. (dissenting, but not on this point).
[22] The appellant points to several features of S.F.’s evidence that he describes as inconsistent and improbable and which he claims the trial judge failed to reconcile: the absence of any bruises or bite marks described in the complainant’s evidence; the absence of stab wounds, in spite of the complainant’s evidence that the appellant repeatedly stabbed her with a knife; and S.F.’s description of sexual intercourse having taken place in the bedroom, when she repeatedly claimed that she was fully clothed at the time. He also submits that the trial judge failed to consider how his rejection of the complainant’s evidence in relation to the unlawful confinement count might have affected his assessment of her evidence on the sexual assault counts.
[23] Several of these issues were raised by defence counsel during submissions and were addressed by the trial judge in his reasons. He found that while S.F.’s recollection was clearly mistaken concerning the presence of bruises, it did not negate the possibility that the appellant bit her. In any case, the absence of bruising was a secondary matter that did not occur during or relate directly to the sexual assaults.
[24] The issue of the absence of stab wounds, which was a focus of submissions before us, was not raised in argument at trial. On a fair reading of the evidence, S.F. was describing the appellant threatening to stab her with a knife. Reading the submissions of counsel at trial, the evidence was understood in this way by counsel and by the trial judge.
[25] S.F.’s evidence that the appellant forced intercourse on her when she was fully clothed was an obvious impossibility. However, she described the appellant lying on top of her on the bed, fully naked, while she was lying on her back with her head on the pillow. His face was close to her face and their stomachs were “stuck to each other” and he put his penis in her “private part”. She also described the appellant making her lie on her stomach and lying on her back and doing “nasty stuff” to her, putting his penis in her “private part”. Neither counsel asked the complainant how the mechanics of intercourse could have taken place when she was fully clothed.
[26] Having regard to the complainant’s evidence of the daily sexual assaults in the shower, which the trial judge accepted, it was unnecessary to the convictions for the trial judge to accept her evidence of other such assaults. Having regard to the challenges associated with the complainant’s evidence and her communications skills, the trial judge was not required to treat any of the foregoing matters as undermining her evidence.
[27] Finally, on this issue, we do not agree that the trial judge’s rejection of S.F.’s evidence on the unlawful confinement count should have affected his assessment of her evidence on the sexual assault counts. The trial judge simply rejected the complainant’s evidence that she was unable to open the bedroom door, and thereby rejected the Crown’s argument that the appellant had confined her to the bedroom all day. There was no evidence of a lock on the bedroom door, and no evidence that S.F. was unable to open the door. It was reasonable to assume that she left the bedroom during the day to use the bathroom. There was no evidence that S.F. had attempted to leave the apartment while the appellant was at work, or even that she wanted to leave the apartment. As the trial judge noted, the fact that S.F. may not have attempted to leave did not foreclose the possibility of sexual assault. Moreover, it does not follow that because the trial judge was left with a reasonable doubt on the unlawful confinement charge, he was required to discount S.F.’s credibility overall.
(b) Misapprehension of evidence concerning tainting of complainant’s evidence
[28] The appellant argued at trial that S.F.’s disclosure of her allegations may have been tainted by her conversations with her cousin, I.F.
[29] In cross-examination, S.F. was asked about her conversation with I.F. after she had returned home. She said that I.F. did not believe her statement to her family that “nothing happened” while she was at the appellant’s home. She testified that I.F. asked her a lot of questions, including:
- whether she had a shower with the appellant;
- whether he had put his “privates” in her mouth;
- whether he put his “privates” in her “privates”; and
- whether he had pulled her hair.
[30] S.F. replied yes, he had done those things. I.F. told her that they would have to go to the hospital and the police station. S.F. testified that they went to the hospital that day and to the police station the following day. She said that I.F. sat with her during the police interview. She also testified that she had spoken to I.F. before she came to court and that I.F. had reminded her of the things S.F. had told her.
[31] The trial judge rejected the assertion that S.F.’s evidence had been tainted. He stated, at para. 61 of his reasons:
I find this argument to be speculative and without foundation in the record. There is no evidence that SF’s account of the sexual assaults was based on a suggestion made by the niece. Nor did the defence call the niece as a witness to substantiate any such claim. Moreover, although the niece attended the initial police interview with SF on December 23, 2017, the niece took no part in the discussion and did not prompt SF or suggest to her that any assaults occurred. SF’s account of the assaults, which is detailed and spontaneous, is made entirely independently and without any support or encouragement from the niece.
[32] The trial judge found it was understandable that S.F. might not have wanted to disclose the sexual assaults to her mother and plausible that she told her cousin, with whom she was close and whom she trusted, at the first available opportunity.
[33] The appellant submits that because the complainant initially said that nothing had happened, but later responded to I.F.’s “leading questions”, there was a risk of confabulation, the unconscious creation of false memories. He submits the trial judge failed to consider evidence relevant to tainting, failed to consider S.F.’s suggestibility and erred in finding that the complainant’s accounts were made independently. Additionally, the trial judge erred in referring to the transcript of the complainant’s videotaped police interview, which was not in evidence.
[34] The respondent acknowledges that although the transcript of the complainant’s police interview had been provided to the trial judge, and was referred to in evidence and in submissions, it had not been placed in evidence and should not have been relied upon.
[35] We agree with the trial judge’s conclusion that this argument is speculative and unsupported by the evidence. While A.F. testified that S.F. was easily influenced and trusting, she also said that she was very open and never lied to her. Both the trial judge and defence counsel observed that there were limits to S.F.’s suggestibility, and she did not hesitate to disagree with suggestions made during examination.
[36] In our view, this is another instance in which the trial judge’s assessment of the evidence was uniquely informed by his opportunity to observe S.F.’s evidence as it unfolded at trial. In a colloquy with counsel for the appellant during closing submissions, the trial judge observed that while S.F. was suggestible, she testified in a “very direct and spontaneous way when she seems to be remembering what happened.” This observation is supported by S.F.’s evidence, which was rich with detail, well beyond the generality of I.F.’s questions.
[37] We do not give effect to this ground of appeal.
(c) Findings not supported by the evidence
[38] Although not addressed in oral submissions, the appellant’s written argument asserts that the trial judge made three findings that were speculative and unsupported by the evidence. We can describe and address these briefly.
[39] First, S.F. testified that when they were on the bus, the appellant asked her personal questions about her family, including where her parents were. The trial judge inferred that the appellant asked these questions to determine whether members of her family would come looking for S.F. if he took her to his apartment.
[40] Second, the trial judge observed that the appellant became upset when he found out that S.F. had been reported missing and that her family was looking for her. He inferred that the appellant was upset because he thought he would be able to keep her in his apartment indefinitely.
[41] Finally, the trial judge found that keeping the complainant in the apartment for four days was inconsistent with the possibility that the appellant was attempting to assist her.
[42] We do not accept the appellant’s submission that these inferences were speculative. In our view, they were available to the trial judge. They were not made in isolation from each other, or from the trial judge’s findings of fact and his assessment of all the evidence, including the complainant’s evidence of the appellant’s abuse. The uncontested fact is that the appellant happened upon a lost young woman with obvious intellectual and physical challenges and kept her in his home for four days – alone and neglected most of the time – without contacting anyone. As the trial judge observed, had the appellant brought S.F. to his residence because he wanted to assist her, he would have made some effort to contact her family or others who could have helped her. In the absence of any evidence that he did so, the inferences drawn by the trial judge were open to him.
(d) Failure to consider inferences inconsistent with guilt
[43] Finally, the appellant submitted in his factum that the verdict was unreasonable because the trial judge failed to turn his mind to an inference inconsistent with guilt when assessing the circumstantial evidence. He impugns the trial judge’s conclusion that the presence of the appellant’s DNA on the complainant’s underwear tended to support a finding that she had been sexually assaulted. She wore the same clothing every day and obviously used the toilet at least once. There was no evidence of the nature and source of the DNA, and the trial judge failed to consider a reasonable likelihood that the appellant’s DNA was transferred to S.F.’s underwear by innocent means.
[44] As the respondent notes, the trial judge’s finding was simply that the DNA evidence “tends to support a finding that SF was sexually assaulted by KB.” The DNA evidence was but one piece of circumstantial evidence in a case based primarily on the direct evidence of the complainant – evidence the trial judge accepted. The fact that the trial judge gave the DNA evidence some weight in his assessment of all the evidence does not make the verdict unreasonable.
Sentence Appeal
[45] With credit of 1.5:1 for the 694 days the appellant had served in pre-sentence custody, there remained 2 years and 54 days to be served in his 5-year sentence. He has since served that remainder of his sentence. The appellant concedes the sentence appeal is therefore moot. We agree.
Disposition
[46] For these reasons, the conviction appeal and the motion for leave to appeal sentence are dismissed.
“G.R. Strathy C.J.O.”
“S. Coroza J.A.”
“J. George J.A.”
