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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220120 Docket: C68669

Tulloch, Hourigan and Sossin JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

H.K. Appellant

Counsel: H.K., acting in person Mark Ertel, appearing as duty counsel Philippe Cowle, for the respondent

Heard: November 4, 2021 by video conference

On appeal from the convictions entered on May 8, 2020 and the sentence imposed on September 3, 2020 by Justice Ann Alder of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of various offences arising out of a sexual assault. He received a global sentence of three years, to be served consecutive to a sentence he is serving for previous convictions.

[2] The appellant’s notice of appeal argues the trial judge erred in two respects. First, the trial judge failed to resolve conflicting evidence on the critical issue of consent. Second, the sentence imposed was excessive because it failed to properly take into account the sentencing principle of totality.

[3] In oral submissions, duty counsel informed the court that the appellant did not wish to advance any arguments regarding his sentence appeal. Accordingly, leave to appeal the sentence was denied. At the conclusion of the hearing, we dismissed the appeal, with reasons to follow. We now provide our reasons.

Background Facts

[4] The facts that form the basis of the convictions are as follows. The appellant and complainant were in a romantic relationship. In January 2019, the complainant took a trip to Miami, Florida with her sister. On her return layover, the complainant, her sister, and the appellant argued over the phone over the complainant’s lack of contact with the appellant during the trip. The complainant returned to her parents’ house from the airport, but later went to the appellant’s residence at the appellant’s request. The pair argued again, and the appellant accused her of infidelity. He also looked at her cellphone and found a photo of the complainant and her sister with two men during the Miami trip.

[5] The complainant testified that she believed the appellant began to get violent after seeing the photo. The complainant could not clearly recall the order in which the events that followed occurred, and she offered inconsistent and shifting testimony on the order of the events.

[6] The appellant gave the complainant an ultimatum: she could either be slapped by him or she could leave. The complainant agreed to receive the slaps and testified that she did so out of fear and in an attempt to fix the situation and their relationship.

[7] At another point in the evening, the appellant either removed the complainant’s clothes or had her remove her own clothes. She could not recall clearly whether he continued to hit her. She testified the appellant digitally penetrated her vagina, and then they had sexual intercourse. She testified that she felt she had no choice but to engage in sexual intercourse with the appellant because she was scared that he was angry and violent, and she was upset and crying. At still another point in the evening, the appellant began punching the complainant in the ribs and around her tailbone. The appellant was angry, and the complainant was crying. The appellant offered to call 911 given the force of the strikes, but she declined because she did not want to involve the police.

[8] The complainant eventually fell asleep and was woken by the appellant grabbing her and throwing her into the bathtub, which was filled with water. The appellant instructed her to remove her pajamas. He handed her a hairbrush with a hand towel wrapped around the handle and instructed her to clean the inside of herself with it. She attempted to comply out of fear of the appellant.

[9] The complainant testified that the next thing she remembered was waking up the next morning to the appellant again throwing her in the bathtub, which was again filled with water. The appellant told her that he would look at the photo every morning to remind himself of her infidelity. The appellant then cut off some of her hair, and then proceeded to urinate on her. He made her insert her fingers in her vagina with the urine in the water. She complied because she felt “completely powerless”.

[10] Over the course of the incidents, the appellant would give the complainant an ultimatum: either she could comply with his demands or she could leave. The complainant testified that she complied because she hoped that compliance would make him stop or would fix the issue.

[11] The following day, the complainant left the appellant’s house without some of her belongings, including her phone. She went to her sister’s house. The complainant and her sister returned to the appellant’s residence and tried to get her belongings back but were unsuccessful. The complainant’s sister contacted the police, who took reports, statements, and photographs. The complainant was then taken to the hospital, where X-rays revealed some bruising.

[12] Following the complainant’s departure from the appellant’s house, he sent the complainant numerous text messages admitting to the facts of the sexual assault and apologizing; however, his text messages also stated that the complainant agreed to the acts that occurred and that the complainant voluntarily agreed to stay rather than leave.

Decision Below

[13] The appellant was convicted of two counts of assault for punching the complainant in the ribs and tailbone area. The force of the strikes was corroborated by evidence presented by the complainant’s sister, the hospital records, photos, and the appellant’s text messages. The trial judge accepted the complainant’s testimony that she did not agree to being struck. While the complainant may have told the appellant at times that “she would do anything to stay”, this does not amount to consent to each act which occurred.

[14] The appellant was also convicted of sexual assault with a weapon and fail to comply for the hairbrush incident. Despite the complainant’s inability to recall whether the punching occurred before this incident or not, the trial judge accepted the complainant’s account of the events. The trial judge also considered the digital penetration of the complainant and the sexual intercourse that followed as part of the context informing whether the complainant had subjectively consented to the hairbrush incident. Though the appellant was acquitted of sexual assault for the digital penetration and sexual intercourse on the basis that the Crown failed to establish an absence of consent or acquiescence as a result of the application of force or threats or the fear of force, the trial judge noted that these acts involved control, harassment, and some violence, and were relevant to her analysis. The trial judge considered the events leading up to the complainant’s attendance at the appellant’s home. She also considered the complainant’s statement that she would do anything to salvage the relationship and the fact that the complainant did not leave when given ultimatums to either stay and comply or leave. Having regard to all the evidence, the trial judge concluded the complainant did not consent to the hairbrush incident and convicted the appellant of sexual assault with a weapon. As the appellant was at the time subject to a recognizance prohibiting the possession of weapons, he was also convicted for fail to comply.

[15] Finally, the appellant was convicted of sexual assault for coercing the complainant to insert her fingers in her vagina after he urinated on her and cut her hair. The trial judge accepted the complainant’s testimony that she again complied out of fear of further violence. She therefore did not consent to the act.

[16] As stated earlier, the appellant was given a global sentence of three years’ in custody.

Issue on Appeal

[17] The appellant argues that the trial judge failed to resolve conflicting evidence on the critical issue of consent. Duty counsel argues that the trial judge treated the credibility assessment in a piecemeal manner. Duty counsel contends that the trial judge did not find the complainant to be credible generally: the complainant’s evidence changed from her examination-in-chief, to her cross-examination, and at times also in her re-examination. Yet, in assessing the complainant’s credibility on the offences for which the appellant was ultimately found guilty, the trial judge failed to consider inconsistencies in the complainant’s evidence on other counts. The trial judge also failed to consider the complainant’s evidence that she had consented to some acts that she would not have otherwise because she had consumed prescription drugs earlier that day. The failure to resolve these issues with the complainant’s evidence amounts to an insufficiency of reasons which warrants appellate intervention. We do not agree.

[18] The Supreme Court of Canada, in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81-82, clearly circumscribes the parameters of appellate intervention and the heightened deference owed to a trial judge’s credibility findings:

[81] … a trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor always available. Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. …

[82] Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty. However, under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. … [Citations omitted.]

[19] We reject duty counsel’s argument that heightened deference to a trial judge’s credibility findings is only owed if the trial judge has found the complainant to be generally credible. A trier of fact is entitled to accept some, none, or all of the evidence given by a witness. The trial judge in this case conducted a thorough and detailed analysis of the entire evidence. She considered where the complainant’s evidence was consistent or corroborated by other evidence, and she explained where the complainant’s evidence was unreliable. This is entirely consistent with her role as the trier of fact.

[20] Duty counsel also argues that, having found issues with the complainant’s evidence about some of the allegations, the trial judge was required to consider whether those weaknesses undermined the complainant’s evidence on other allegations. Duty counsel further suggested that had the trial judge stated in her reasons that she was accepting the complainant’s evidence notwithstanding issues with her evidence on other allegations, the trial judge’s credibility findings would be entitled to deference as stated in G.F.

[21] Respectfully, this submission misunderstands the instruction in G.F. G.F. requires appellate courts to take a practical approach to reviewing a trial judge’s reasons. There is no magic incantation required of trial judges. Reading the trial judge’s reasons as a whole, there is no basis on which we find that they were insufficient so as to be inscrutable or incapable of meaningful appellate review. The trial judge’s reasons were careful and nuanced. She explained why she did not accept some of the complainant’s evidence and why she did accept other parts of the complainant’s evidence. Moreover, the trial judge did not consider the complainant’s evidence alone but also had regard to corroborating evidence by other witnesses, photos, and text messages.

[22] In our view, the trial judge made no error in her analysis.

Disposition

[23] For the foregoing reasons, the appeal from the convictions is dismissed.

“M. Tulloch J.A.”

“C.W. Hourigan J.A.”

“L. Sossin J.A.”