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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220516 DOCKET: C69135

Simmons, Harvison Young and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

T.D. Appellant

Counsel: T.D., in person by video conference Mark Halfyard, appearing as duty counsel Philippe Cowle, for the respondent

Heard: May 4, 2022

On appeal from the convictions entered by Justice J. Paul R. Howard of the Superior Court of Justice on January 15, 2019, and from the sentence imposed on June 18, 2019, with reasons reported at 2019 ONSC 3761.

Reasons for Decision

[1] Following a judge alone trial, the appellant was convicted of one count of sexual assault and one count of extortion arising out of events that occurred in 2015. He was acquitted of two counts of sexual assault, two counts of extortion and one count of assault. He was sentenced to 3 years 4 months’ imprisonment for sexual assault and 14 months’ imprisonment concurrent for extortion. He appeals from conviction and seeks leave to appeal sentence.

[2] The complainant in this matter is the appellant's wife. She testified at trial that she immigrated to Canada from Nigeria in 2013 using false documents but that following her arrival she disclosed the false documents and claimed refugee status. According to her, as of 2014, her claim for refugee status and two subsequent appeals had been denied.

[3] It is undisputed that the complainant and the appellant met on an online dating service in the latter part of April 2015. They met in person in early May 2015 and were subsequently married on May 28, 2015. They separated as a result of the appellant's arrest on July 30, 2015.

[4] Soon after the couple married, they consulted an immigration lawyer for the purpose of the appellant commencing a sponsorship application for the complainant.

[5] The complainant testified, and the trial judge accepted, that on numerous occasions she engaged in sexual activity with the appellant because he threatened to withdraw the sponsorship application. The trial judge found that the complainant's evidence in this respect was supported by the evidence of the immigration lawyer's legal assistant who described a constant back and forth with the appellant, first calling to cancel the sponsorship application and later calling back to reinstate it on numerous occasions. He also found that the appellant made a partial admission when he acknowledged on cross-examination that “a small part” of the reason he was cancelling the sponsorship application was because the complainant “wouldn’t give [him] the sex [he] wanted”.

[6] Duty counsel raises two issues on the appellant's conviction appeal.

[7] First, he submits that the trial judge erred in his W.D. analysis by concluding that the appellant's evidence could only raise a doubt if corroborated by other evidence. As such, duty counsel submits that the trial judge effectively excluded the potential operation of the second branch of W.D. Duty counsel points to the following statement in the trial judge's reasons:

I have come to the conclusion that I must reject [the appellant's] version of the events in question unless it is corroborated by other evidence that I do accept.

[8] We do not accept duty counsel’s submission in this respect. The trial judge made the impugned statement after identifying several problems with both the credibility and the reliability of the appellant's evidence.

[9] As we read the impugned passage, the trial judge was not excluding the potential operation of the second branch of W.D. Rather, he was making a credibility finding. He found that the appellant's evidence lacked sufficient reliability and credibility to be believed or raise a reasonable doubt unless supported by other evidence.

[10] After making the impugned statement, the trial judge went on to address the issues raised by defence counsel at trial concerning the complainant's evidence. He then turned to the elements of the offences. He made findings of guilt concerning two offences but found the evidence insufficient to support findings of guilt on other offences. At several points in his reasons, the trial judge properly instructed himself in relation to W.D. Considering the trial judge’s reasons as a whole, we are not satisfied that the reasons reveal an error in applying the W.D. principle.

[11] Duty counsel's second submission is that the trial judge failed to address a material issue raised by defence counsel at trial concerning the credibility of the complainant's evidence, namely her explanation for fleeing Nigeria. The trial judge held that he lacked sufficient evidence to determine the issue and that, in any event, it was collateral. However, the trial judge subsequently used a finding about that same issue to mitigate other concerns about the complainant's credibility, in particular, the fact that she had admittedly falsified documents to gain entry to Canada.

[12] Duty counsel submits this approach was unfair. The trial judge refused to determine an issue and yet used a finding about that same issue to mitigate an admitted credibility problem in the complainant's evidence.

[13] The trial judge’s impugned subsequent finding reads as follows:

In assessing the credibility of the complainant one cannot ignore her presentation of falsified documents to gain entry to Canada. It indicates, among other things, a strong desire on her part to remain in this country and, further, her willingness to use methods of deceit to pursue and attain her goals. I am very much alive to those concerns. If one assumes that the complainant's explanation of her background in Nigeria of her daughter's circumstances are true, then I can appreciate the complainant's motivation. Nevertheless, that evidence cannot be ignored, and I have not ignored it. However, my task is not to assess whether the Crown has proven any one piece of evidence beyond a reasonable doubt. My task is to determine, considering the totality of all of the evidence before me, whether the Crown has proven each of the constituent elements of the offences charged. [Emphasis added.]

[14] We do not accept this submission. Read fairly, the trial judge's reasons indicate he accepted that the fact that the complainant had fabricated her entry documents was a concern in relation to her credibility. Although there could be an explanation for her motivation in doing so, he could not determine whether that explanation was true and had to bear in mind the admitted falsification of documents.

[15] Ultimately, the trial judge concluded that neither the complainant nor the appellant was likely being truthful in their explanations for marrying the other party.

[16] However, in proceeding to assess the evidence relating to the offences, the trial judge made findings of guilt only where he found the complainant's evidence was supported by other evidence. As noted above, this evidence consisted of evidence from the immigration lawyer’s legal assistant and the appellant’s partial admission. It was open to the trial judge to accept all, none, or some of any witness’s evidence. Overall, we see no unfairness in the trial judge’s assessment of the complainant’s credibility.

[17] On his own behalf, the appellant asserts that the trial judge erred in treating the above-noted statement as a partial admission and further erred in criticizing his (the appellant’s) use of the word “probably” in his evidence.

[18] We do not accept these submissions. The trial judge heard the appellant testify and was uniquely placed to interpret and assess the credibility of the appellant’s evidence.

[19] The conviction appeal is dismissed.

[20] The appellant has now served the custodial portion of his sentence. Neither he nor duty counsel made any submissions as to sentence. We see no basis on which to interfere with the sentence imposed. Leave to appeal sentence is denied.

“Janet Simmons J.A.”

“A. Harvison Young J.A.”

“S. Coroza J.A.”