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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2022-05-26 Docket: C67442

Simmons, Miller and Nordheimer JJ.A.

Between: Her Majesty the Queen, Respondent And: Suvaughn Brown, Appellant

Counsel: Paul J.I. Alexander, for the appellant Caitlin Sharawy, for the respondent

Heard: March 22, 2022 by video conference

On appeal from the convictions entered on April 14, 2016 and the sentence imposed on January 4, 2017 by Justice Peter Harris of the Ontario Court of Justice.

B.W. Miller J.A.:

Overview

[1] Early in the morning on November 30, 2013, the complainant S.A. suffered injury. She had abrasions and swelling under her right eye, cuts and swelling on her lips, a broken tooth with a damaged nerve, and a gash on her forehead. There were blood stains on her clothes. With the help of her roommate, she placed a 911 call and reported that she had been sexually assaulted by two men. When she was examined at hospital later that morning, semen was found inside her vagina and rectum and on her jeans. Two years later, the appellant was identified through the DNA databank as the source of the semen. He was convicted of sexual assault and forcible confinement, and now appeals.

Background

[2] On the complainant’s evidence, she was walking home from a bar early in the morning when a car drove up with two men in it. They offered her a ride home. She testified that because they were Somali, like her, and she had been drinking, she trusted them and accepted the ride, even though they were strangers and her house was only 100 metres away.

[3] Once she was in the car, they ignored her directions and kept driving. She became upset. They became verbally abusive. They drove her to an empty parking lot, somewhere downtown. When she got out of the car, one of the men – the passenger – grabbed her from behind and anally penetrated her. The other man, the driver, punched her twice in the face. At some point she fell to the ground and ran.

[4] She made her way home, pausing to phone a former girlfriend at 3:25 a.m. who told her she should go home and phone the police. She did. When she arrived home, she woke her roommate who placed a call to the 911 operator and handed the phone to the complainant. The recording of the call showed the complainant to have been in an extreme state of distress. An ambulance was dispatched and the complainant was taken to hospital where a rape kit examination was conducted.

[5] The appellant testified as to a very different encounter. On his account, he went to a bar that night which he had regularly attended for several years, two or three times a week, to collect drug debts. He was only ever there on business and never bought himself a drink or interacted with any of the staff. He recalled bumping into the appellant inside the bar and apologizing to her. Soon after, he received a call from the customer he had planned to meet at the bar, telling the appellant to come to the customer’s house instead. The appellant left the bar, collected the debt, and walked back to the bar.

[6] On his return, he saw the complainant sitting on the sidewalk, leaning against the wheel of a car. He noticed she was injured and bleeding from the mouth. There was blood around the car and the complainant was wiping blood off her face. Concerned, the appellant approached her and asked if she would like him to call an ambulance. She replied that she was fine and that she had fallen and chipped her tooth. He offered to drive her home. She accepted. She asked him if she looked ugly. He said no.

[7] Once in the car, she asked him again if he thought she still looked pretty and he told her she did. She told him that she did not want to go home yet and asked him to pull over into a parking lot. He did. He told her his name and that he sometimes worked at a car wash. She was running her hands all over him, told him he was handsome, and started kissing him on his neck. She got out of the car, said “let’s do it out here”, and took one leg out of her pants. The appellant “gave in” and joined her, took off his clothes and had intercourse with her for 10 to 15 minutes. When he was finished, they got dressed and he drove the complainant home. There was no further conversation, apart from saying goodbye, and he left. The appellant testified this was not an unusual encounter for him, except for “the blood part”.

[8] There were no other witnesses at trial. The trial judge rejected the appellant’s evidence and found it did not raise a reasonable doubt. Apart from the mechanics of the sexual encounter, the appellant’s testimony was short on specifics. He was, for example, unable to describe the bar with the degree of familiarity commensurate with having frequented it for several nights a week for several years to collect his drug debts. He was unable to offer a description of the complainant’s house, beyond saying that it had steps leading to a front door. The only specific detail he provided was the make and model of the car the complainant was said to be leaning against when he found her – a detail that by its nature added nothing to the credibility of the appellant’s account. The trial judge found the appellant’s narrative of the encounter with the complainant to be so implausible as to be “a complete fantasy”. He found it implausible that the complainant – a dental hygienist who had just chipped her tooth (damaging the nerve and requiring a root canal the next day) and had suffered cuts to her face and swelling in her lips – would almost immediately begin kissing a complete stranger, notwithstanding the obvious pain and discomfort it would have caused her.

[9] On appeal, counsel for the appellant argues that the trial judge erred in rejecting the appellant’s evidence and in accepting the complainant’s evidence. Even if the trial judge rejected the appellant’s evidence, the appellant argues, the problems with the complainant’s evidence ought to have raised a reasonable doubt as to whether the appellant committed the offences.

[10] As I explain below, I do not agree that the trial judge made the errors identified, and I would dismiss the appeal.

Issues

[11] The appellant raised the following issues:

1. The trial judge erred by finding the complainant’s evidence was corroborated by: a. Her prior statement to the 911 operator, particularly given inconsistencies with her trial evidence; and b. Evidence that ought to have been characterized as neutral.

2. The trial judge misapplied the burden of proof by: a. reversing the burden of proof; b. applying uneven scrutiny; and c. focusing on credibility to the exclusion of reliability.

3. The trial judge impermissibly engaged in speculation.

Analysis

[12] There were few points of convergence between the testimony of the complainant and the testimony of the appellant. The trial judge found the appellant’s testimony to be incredible. He not only rejected it, but found it did not raise a reasonable doubt. Although the appellant advanced many lines of attack against the reasons, most of these are subsumed under the argument that the trial judge failed to follow the analytical structure of R. v. W.(D.), [1991] 1 S.C.R. 742, through to the final step of determining whether the evidence that he accepted raised a reasonable doubt as to the guilt of the appellant.

(1) Prior Consistent Statements and Corroboration

[13] First, the appellant argues that the trial judge impermissibly used the complainant’s statement to the 911 operator as corroboration of her trial testimony. The trial judge noted that the complainant sounded “distraught, hysterical and somewhat intoxicated” and was “crying and rambling incoherently to some extent”. He concluded that “[t]his 911 dialogue is unquestionably a graphic depiction of her state of mind and entirely consistent with an experience of serious harm, injury and trauma.” Elsewhere in his reasons, he noted “the confirmatory tone and content of the 911 call” as part of the evidence that provided “a significant degree of corroboration” of the complainant’s evidence. The appellant argues that the trial judge strayed from using the 911 call as evidence of state of mind, and impermissibly used it to bolster the complainant’s claim that she was sexually assaulted.

[14] Prior consistent statements are, as the appellant argues, generally inadmissible. Even where admitted under one of the exceptions to the general exclusionary rule, they can never be used for the inference that in-court testimony is more likely to be true because a witness said the same thing on a previous occasion out of court. The trial judge was, however, entitled to use the complainant’s demeanour on the 911 call to draw inferences about the credibility of the complainant’s account, and to rely on this evidence as supporting her testimony of having experienced a violent sexual assault: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, leave to appeal refused, [2017] S.C.C.A. No. 139, at paras. 31-34; R. v. Steele, 2021 ONCA 186, at para. 94. But the appellant argues that the trial judge went beyond this legitimate use and strayed into using the substance of her statements on the 911 call as corroborative of her testimony at trial.

[15] It should be noted that sexual assault is not an offence for which corroboration of a complainant’s testimony is needed. This court has at times cautioned that it would be best if trial judges did not use the language of corroboration when corroboration is not required for proof of an offence, and when what is meant is simply that the trial judge has found some piece of independent evidence to be confirmatory of a witness’s evidence: R. v. MacKenzie, 2015 ONCA 93, 19 C.R. (7th) 150, at para. 6; R. v. D.A., 2018 ONCA 612, at paras. 17-18. It is evident in this case that the trial judge, although using the language of corroboration, was not using it in its technical, legal sense, but rather to indicate that he found the evidence supported the complainant’s testimony to some degree.

[16] I do not agree that a reading of the trial judge’s reasons as a whole supports the view that the trial judge used the substance of the 911 call as supporting the complainant’s testimony. The central paragraph of the reasons dealing with this evidence focused clearly on demeanour. It was responsive to Crown submissions that sought to use the evidence solely to support the complainant’s state of mind. The phrase “the confirmatory tone and content of the 911 call”, which appears later in the trial judge’s reasons, is clearly a reference to the complainant’s highly emotional state of mind, conveyed not only by the tone that she used, but by the words that she used. The trial judge did not use the 911 statement for the impermissible purpose of equating credibility with repetition.

[17] Second, the appellant argues that the trial judge erred in finding the 911 call corroborative even though the substance of the call contradicted aspects of the complainant’s trial evidence.

[18] Given that I do not agree that the trial judge used the substance of the 911 call as supporting the complainant’s testimony, this argument fails as well. The allegation that the trial judge did not adequately address the inconsistencies in the complainant’s evidence is better addressed under the appellant’s burden of proof argument, considered below.

[19] Third, the appellant argues that the trial judge erred by treating the bodily fluid evidence as corroborative of the complainant’s account. The presence of the appellant’s semen in the vaginal and anal swabs was, the appellant argues, equally consistent with both the consensual sexual encounter described by the appellant and the sexual assault described by the complainant. Similarly, the appellant argues that the blood stains on the complainant’s clothing were, without expert evidence to the contrary, incapable of establishing whether the complainant’s injuries were the result of a fall (as per the appellant’s evidence) or of an assault and a fall (as per the complainant’s).

[20] The respondent argues that once the trial judge had rejected the appellant’s evidence and found that it did not raise a reasonable doubt, any other independent evidence the trial judge accepted that was consistent with the complainant’s evidence, such as the bodily fluid evidence, was therefore also confirmatory of the complainant’s evidence. In other words, the respondent argues that once the trial judge had rejected the appellant’s testimony, independent evidence that would otherwise have been neutral between the two different accounts now supported the one account still standing.

[21] The respondent was unable to supply any authority in support of this proposition, which in my view is unsound. The assessment of evidence under the W.(D.) framework does not proceed in such a mechanical way.

[22] But that is not to say that evidence that could be viewed as consistent with differing accounts of an event would be irrelevant to a trial judge’s reasoning – evidence that is supportive of a witness’s testimony can, for example, be used in assessments of credibility in making findings of fact: R. v. Primmer, 2021 ONCA 564 at para. 39, leave to appeal ref’d, [2021] S.C.C.A. No. 462; and “a trial judge is entitled to consider all relevant and material collateral facts, whether disputed or admitted, in determining whether the complainant’s evidence is reliable”: R. v. Demedeiros, 2018 ABCA 241, 431 D.L.R. (4th) 650 at para. 13, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568; R. v. J.B., 2022 ONCA 214 at para. 38. Although the semen evidence was neutral on the issue of consent, it was not irrelevant to the trial judge’s assessment of the complainant’s credibility. It formed part of the totality of the evidence the trial judge was required to consider in determining whether the complainant’s account of the events was both reliable and credible. Viewed as a package, and considered in the context of the whole of the evidence at trial, the trial judge found the bodily fluid evidence, the evidence of the complainant’s injuries and the evidence of her demeanour on the 911 call consistent with, and therefore supportive of, her account of what transpired. Although it would have been preferable had the trial judge avoided terminology invoking “corroboration”, I am not persuaded that this aspect of the trial judge’s assessment of the complainant’s credibility reveals reviewable error.

(2) Did the trial judge misapply the burden of proof?

[23] Under this head, the appellant argues that the trial judge: (a) reversed the burden of proof, (b) applied uneven scrutiny, and (c) focused on the complainant’s credibility to the exclusion of her reliability. Essentially, the appellant argues that the trial judge erred in accepting key features of the complainant’s evidence, and in concluding that the appellant’s evidence did not raise a reasonable doubt. As I explain below, I am not persuaded that the trial judge made the errors alleged.

(a) Reversing the burden

[24] First, the appellant argues that the trial judge reversed the burden of proof on multiple occasions by faulting the appellant for providing insufficient detail in his testimony about matters of questionable relevance, such as the colour of the appellant’s front door or observations about the patrons or employees of the bar or of its decor. One detail the appellant did provide – that the car the complainant was said to be leaning against was a Toyota Camry – was discounted by the trial judge as being incapable of corroboration, thus putting an onus on the appellant to corroborate his testimony.

[25] I do not agree that the trial judge erred. The trial judge found the appellant’s account of the events of that night to be unbelievable. There were several reasons why. Most prominent was the trial judge’s conclusion that the appellant’s testimony “about having a random, unprotected sexual encounter with an injured woman who was found by him, sitting on the road at about 2:00 o’clock in the morning, her back against a car, tooth chipped and wiping blood off her face, is not logical, plausible nor does it accord with the broad range of human experience”.

[26] In addition to the inherent implausibility of the appellant’s account, the trial judge commented that the appellant’s evidence as a whole lacked “nuance, detail, or local colour that might otherwise have imbued his tale with some vitality”. The trial judge provided examples: when asked to relate any conversation between himself and the complainant, the appellant supplied almost none and maintained there was no conversation on the drive home. When asked for a description of the complainant’s house, he only attested that it had a door with steps leading to it – a rather ubiquitous architectural feature. When asked to supply any details about the bar he said he frequented two or three times a week for several years, he had none. When the trial judge dismissed the identification of the car as a Toyota Camry as “incapable of corroboration”, what he meant was not that the appellant was required to corroborate the details of his testimony, but that this lone, stray detail – which for the purposes of the narrative could just as easily have been any other make or model of car – did nothing to blunt the overall impression that the appellant was testifying as to places he had not been and events he had not participated in.

[27] The appellant was not required to supply any particular detail in order to be believed, or for his testimony to raise a reasonable doubt. But his testimony was unbelievable, did not raise a reasonable doubt, and the trial judge did not err by explaining how a detail that was proffered as creating a reasonable doubt did not. This did not amount to a reversal of the burden of proof.

(b) Uneven scrutiny

[28] The uneven scrutiny argument and the argument that the trial judge failed to grapple with the reliability of the complainant’s evidence are different shades of the same argument: had the trial judge held the complainant’s evidence to the standard that he ought, he would have had a reasonable doubt about the appellant’s guilt.

[29] The Supreme Court of Canada has expressed doubt as to whether uneven scrutiny is a helpful or independent ground of appeal: R. v. G.F., 2021 SCC 20, at para. 100. It is a “notoriously difficult” argument to succeed upon, and requires that it be clear that the trial judge applied different standards in assessing competing evidence: R. v. Kiss, 2018 ONCA 184, at para. 83.

[30] The appellant argues that he was held to a more exacting standard than the complainant in several respects.

[31] First, the appellant argues it was unfair for the trial judge to find it incredible that a woman with serious facial injuries would initiate sexual activity with a stranger, while suspending disbelief that a woman walking home alone at 2 a.m. would take the risk of accepting a ride from two men she had never met before when she was so close to home there was no reason for her to do so.

[32] I do not agree that this is an instance of uneven scrutiny. The trial judge rejected the appellant’s account because its veracity turned on behaviour well outside “the broad range of human experience”. That is, it would be highly unusual for a woman who had just sustained a serious facial injury and was still wiping away the blood roadside to initiate an urgent sexual encounter with a stranger, contrary to the ordinary response to injury and pain.

[33] The complainant’s evidence, on the other hand, although manifesting poor judgment, nevertheless fits within a recognizable pattern of human behaviour: of a person whose judgment is impaired by alcohol not perceiving risks accurately or responding to them prudently. The trial judge accepted the complainant’s evidence that she exercised poor judgment, having a false sense of security produced in part by what she believed to be a cultural affinity with the men who offered her the ride.

[34] Other examples raised by the appellant point to the trial judge’s willingness to tolerate a lack of detail in the complainant’s evidence that he was unwilling to tolerate in the appellant’s testimony. For example, although the trial judge was unimpressed with the level of detail provided by the appellant about the bar, the conversation, and the complainant’s house, he was untroubled that the complainant’s evidence about the environs of the bar was not much more detailed.

[35] The difficulty with the appellant’s argument is that it demands a symmetry in the evidence that is divorced from the reality of the trial. Whether the complainant was actually in the bar as she said was never an issue at trial. Accordingly, she was not examined about the bar, except in the most general way, and her answers were appropriately responsive to the actual questions she was asked. The appellant, however, was on an entirely different footing. It was very much in issue as to whether he was ever at the bar. The questions put to him on cross‑examination were meant to elicit his unfamiliarity with the bar, and so his inability to relate anything other than the most generic features was probative of a matter in issue.

[36] The appellant’s other examples of uneven scrutiny fail for similar reasons.

(c) Reliability and speculation

[37] The appellant advanced multiple grounds of appeal – uneven scrutiny, reversal of the burden of proof, failure to address reliability, and resort to speculation – that all rely on essentially the same argument: that the trial judge failed to address material inconsistencies in the complainant’s evidence. The appellant points to apparent gaps and contradictions in the complainant’s testimony, some of which were raised before the trial judge and some of which are raised for the first time on appeal.

[38] The complainant’s evidence was not without difficulties. It raised questions that, as the trial judge noted, “require serious consideration”. Did the trial judge nevertheless fail to grapple adequately with the apparent gaps and contradictions in the complainant’s evidence? I conclude that he did not.

[39] The appellant points to four main problems with the complainant’s evidence: (i) her testimony that the assailants both spoke Somali; (ii) her testimony that the passenger who committed the sexual assault was a dark-skinned Somali man; (iii) her 911 statement that she was sexually assaulted by two men; and (iv) her evidence leaves large blocks of time unaccounted for.

(i) The assailants spoke Somali

[40] It was pivotal to the complainant’s account that she was addressed in Somali. She was emphatic about that: “[T]his is my mother language and they spoke to me so I will – that’s one thing I will not forget.” The fact that she was spoken to in Somali is what put her at ease.

[41] Her testimony was less consistent as to whether both of the men spoke Somali or just the driver. This is of course significant as the appellant is not Somali, and there was no evidence at trial that he could speak Somali to any degree. If the complainant testified as to a clear recollection of both men conversing with her (or with each other) in Somali, this would seem to undermine the case against the appellant.

[42] The complainant’s evidence did not always differentiate between the two assailants and the respective roles they played in the assault: “they offered me a ride”; “they passed my house”; “they not really listening to me”; “they pulled in behind some tall buildings”; “they locked the doors”; “they punched me”; “they broke half of my tooth”. Similarly, “they spoke to me in Somalian”; “they’re saying things in Somalian”.

[43] In cross-examination, when she was specifically asked to confirm that both men in the car were speaking Somalian, she replied “Yes… actually I’m not sure about the other guy. One of them was speaking Somalian.” Then the following exchange took place:

Q. Okay. The, the guy in the back, he was – you told the police that he was swearing at you in Somali.

A. Okay, I don't...

Q. Is that...

A. ...remember.

Q. And the guy in the front, the driver, he was speaking Somali to you as well?

A. Yes, I remember, yes.

Q. Okay, so definitely the driver was speaking Somali to you?

A. Yes.

Q. And the guy in the back, he, he was adding into the conversation from time to time as well?

A. Yes.

Q. And, and again, I'm going to go back to this. He was swearing at you in, in Somali, you remember that specifically?

A. Yes, I remember.

Q. Okay, and he was communicating with you in Somali as well...

A. Yes.

Q. The two people that assaulted you that night, they were not Jamaican, agree, right?

A. No, not that I – I don't know about the guy at the back but they were Somalian guys.

Q. Well the guy in the back was speaking Somalian to you?

A. Too, he did say words in Somalian, yes, but...

Q. Right.

A. ...everybody can know words in Somali.

[44] On re-examination, she repeated her uncertainty:

Q. ...the actual Somalian language, when they were speaking to you they were either speaking in English or Somalian. What I'm trying to get at is do you remember if there was a person in the car that only spoke Somalian or if it was a combination of Somalian and English?

A. It was a combination. That's how I speak it.

Q. Okay, but with both people, both of the males in the car?

A. If they both spoke Somalian and English?

Q. Yes.

A. I don't remember.

Q. Okay.

A. There was Somalian spoken. Was it both of them speaking Somalian? I don't know.

Q. Okay, fair enough. But do you remember if one of them could only speak Somalian to you?

A. Only speak Somalian, I don't know. There was Somalian – I remember because there was Somalian words, there was Somalian conversation.

[45] There was significant imprecision in the complainant’s evidence about the conversation she had with the assailants, the actual words spoken, the extent to which the conversation was a mix of Somalian and English, and whether the passenger spoke to her in Somalian beyond swearing at her. She never unequivocally stated that she carried on a conversation with the passenger in Somalian. She seemed to confirm, however, that he swore at her in Somalian.

[46] What was central to the complainant’s testimony was expressed consistently and reasonably clearly: she was hailed in Somalian from a passing vehicle. She was offered a ride, got into the vehicle, and had some conversation, primarily with the driver, speaking a mixture of Somalian and English.

[47] The trial judge’s primary conclusion was that the complainant’s focus on the driver, her alcohol consumption and a significant fear factor arising from the events could explain the lack of precision in her evidence. He also stated that, despite the appellant’s assertions to the contrary, “it may be that [the appellant] is able to communicate some expressions in the Somalian language.” The latter statement constitutes impermissible speculation. Nonetheless, it is clear that, overall, the trial judge was satisfied that the imprecision in the complainant’s evidence concerning whether the appellant ever spoke to her in Somalian did not affect the reliability or credibility of her evidence. This conclusion was open to him on the evidence. While perhaps imperfect, I do not consider that his explanation for that conclusion constitutes reversible error.

(ii) The appellant does not match the physical description of the passenger

[48] The complainant testified that the passenger was a dark-skinned Somali man. The appellant is a light-skinned Jamaican man. The trial judge considered this discrepancy and did not consider it to be of any great moment, given what he found to be the complainant’s limited opportunity to observe the passenger. She was, according to her testimony, focused on the driver. The attack took place at night, it was dark, and the passenger had grabbed her from behind. The trial judge did not err in finding it to be reasonable that the complainant might not accurately perceive or remember the passenger’s skin colour. As with the issue of language, the precise skin tone of the assailant was but one factor that the trial judge had to consider.

(iii) The number of assailants

[49] The appellant notes that the complainant, in her response to the 911 operator’s question “they both had sex with you?”, replied “yes they did.” But in her testimony she described being penetrated by only one man, the passenger.

[50] Again, the inconsistency is only one aspect of the complainant’s evidence. It was not put to the complainant on cross-examination. Neither was it referenced in closing submissions. The trial judge made no error in not addressing it.

(iv) The timing

[51] There are, as the appellant points out, gaps in the complainant’s chronology. She left the bar, on her account, at approximately 2 a.m. She testified that she did not know where her assailants took her, other than saying they drove west on Bloor Street and past Dundas, and that the car stopped in a parking lot near tall buildings. She did not testify – and was not asked – how long the attack lasted or how she got home. She testified that she could not remember how long it took to get home. Phone records show that she placed a call to her former girlfriend at 3:25 a.m. The complainant testified about the phone call, saying that she was told she sounded like she was drunk and should go home and call 911, which she did. The 911 call was placed from her home by her housemate at 5:25 a.m.

[52] On appeal, the appellant argues that the unexplained two-hour gap between the two phone calls provides a reason to disbelieve the complainant. This issue is raised for the first time on appeal. The complainant was never asked at trial to explain where she was during those two hours or what she did. It is also significant that the issue did not feature in the closing submissions of the defence.

[53] That said, the trial judge obviously turned his mind to the timing issue. He pointed out during defence counsel’s closing submissions that the complainant’s cell phone records on which she had been cross-examined were not filed as an exhibit. Nor had the timing of the 911 call been established. As a result, during closing submissions, Crown counsel at trial stipulated the time and duration of the complainant’s call to her former girlfriend and both counsel agreed on the timing of the 911 call.

[54] In his reasons, the trial judge found that what the complainant said transpired after the attack was “entirely consistent with her narrative.” He said it was “likely” she ran “for some distance” immediately following the attack until confident she had escaped and then called her friend. He found the timing gap between the two calls “consistent with having walked a considerable distance” from a downtown area to her home. He then turned to what he found “most telling”: her demeanour on the 911 call.

[55] Once again, the trial judge seems to have crossed the line from reasonable inference drawing to some degree of speculation. However, in the context of this case, his speculation can fairly be classified as harmless overstatement. On the record before him, there was no basis for finding an inconsistency in, or other reason to be concerned about the reliability or credibility of the complainant’s account because of the time gap between the 3:25 a.m. and 5:25 a.m. calls. The issue was not raised with the complainant or in closing submissions.

[56] In the end, it was open to the trial judge to find that there was nothing inconsistent about what happened following the attack and the complainant’s narrative and that her demeanour on the 911 call was entirely consistent with it. Again, while perhaps imperfect, I find no reversible error in this aspect of the trial judge’s reasons.

The sentence appeal

[57] The appellant has served his sentence, and now only seeks to have the victim surcharge order quashed. The victim surcharge has been struck down as unconstitutional, and the Crown concedes that it is appropriate to quash the order. Accordingly, I would allow the sentence appeal in that respect.

Disposition

[58] I would dismiss the appeal against conviction and allow the sentence appeal, quashing the victim surcharge order. I would leave the balance of the sentence imposed in full force and effect.

Released: May 26, 2022 “J.S.” “B.W. Miller J.A.” “I agree. Janet Simmons J.A.” “I agree. I.V.B. Nordheimer J.A.”