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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220610

DOCKET: C70000

Trotter, Sossin and Favreau JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Kelly Kuper Appellant

Delmar Doucette and Ioana Dragalin-Reeves, for the appellant Jeffrey Wyngaarden, for the respondent

Heard: May 30, 2022

On appeal from the convictions entered by Justice Salvatore Merenda of the Ontario Court of Justice on September 17, 2021.

REASONS FOR DECISION

Introduction

[1] The appellant was charged with one count of threatening, three counts of assault, and one count of sexual assault, all in relation to his former partner. The charges relate to three separate incidents that occurred in 2018:

• The staircase incident . It was alleged that the appellant threw the complainant down a flight of stairs.
• The sexual assault incident . It was alleged that the appellant struck the complainant in the head, broke her finger, threatened to “choke her out”, and sexually assaulted her by forced penile-vaginal penetration.
• The head-butting incident . It was alleged that the appellant head-butted the complainant as she attempted to leave his trailer against his wishes.

[2] The appellant was found not guilty in relation to the staircase incident; he was found guilty of the charges in relation to the other two incidents.

[3] The appellant challenges the trial judge’s credibility findings, submitting that he failed to apply the principles in R. v. W.(D.) , [1991] 1 S.C.R. 742 as it related to the evidence of two peripheral Crown witnesses. The appellant further contends that the trial judge misapprehended his evidence concerning the sexual assault incident, which caused the trial judge to improperly reject his evidence.

[4] We are not persuaded by these submissions. This was a straightforward two-day trial. The trial judge provided detailed reasons for judgment in which he considered all of the evidence. He applied the correct legal principles. Specifically, the trial judge identified the principles concerning the proper approach to credibility and reasonable doubt, referring to W.(D.) and R. v. C.L.Y. , 2008 SCC 2 , [2008] 1 S.C.R. 5. He returned to these principles at the end of his reasons; he applied them throughout. We are unable to conclude that the trial judge failed to consider any exculpatory value to be found in the testimony of the Crown witnesses when applying the reasonable doubt standard. Moreover, the trial judge did not unfairly mischaracterize the appellant’s evidence.

The Head-Butting Incident

[5] The appellant’s parents owned a KOA campground. In 2018, the appellant and the complainant lived together in a trailer on this property.

[6] The complainant testified that the appellant attempted to prevent her from leaving the trailer one day by blocking the door with his arms. He also head-butted her. The appellant testified that, while perhaps not deliberately, he may have blocked the complainant from leaving the trailer, but he did not otherwise touch her. The complainant’s friend, S.R., testified that the complainant called her and asked to be picked up. When she arrived, she saw the appellant trying to stop the complainant from leaving the trailer. S.R. testified that she did not witness the appellant assault the complainant (and she did not consider the appellant’s attempt to prevent her from leaving to be an assault).

[7] The appellant submits that the trial judge erred in his treatment of S.R.’s evidence, which he says supported the appellant’s version of events. We do not accept this submission. To begin with, the trial judge did not accept S.R.’s evidence in general, because he found her to be unreliable. Fundamentally, he rejected her evidence that she witnessed the incident from outside the trailer; he relied on the complainant’s evidence that S.R. was inside the trailer at the time. More importantly, the trial judge reasonably interpreted her evidence as conveying that she did not witness any assault. As the trial judge said: “Simply because [S.R.] may not have seen this does not mean it didn’t happen.”

[8] The trial judge referred to the principles in W.(D.) in relation to this charge and said:

There is nothing in his [the appellant’s] evidence that leaves me in reasonable doubt on this charge. Indeed, after considering the totality of the evidence , I am not left in reasonable doubt as to his guilt therefore he will be found guilty on count number four. [Emphasis added.]

[9] It may have been preferrable had the trial judge specifically referenced S.R.’s evidence in this paragraph. However, given the underscored language, we are unable to conclude that the trial judge ignored S.R.’s evidence in this context.

[10] We dismiss this ground of appeal.

The Sexual Assault Incident

[11] The appellant makes a similar submission in relation to the sexual assault incident. The complainant testified that the appellant assaulted and threatened her (i.e., to choke her out) and then took her by the arm to the bedroom where he vaginally penetrated her without consent. When the assault was over, the appellant fell asleep. She then made her escape. The appellant denied that he threatened, assaulted, or sexually assaulted the complainant. Indeed, as discussed in more detail below, the appellant testified that the complainant made sexual advances towards him, which he rejected.

[12] It was common ground at trial that the complainant left the trailer after the appellant was asleep and went to the house of an acquaintance, R.N. The complainant said she walked through the bush barefoot and got to a place where she called a taxi. When she arrived at R.N.’s house, she described herself as visibly injured, disheveled, and upset. However, R.N. testified that he did not notice anything unusual about the complainant, although he said that he did not know her very well.

[13] The trial judge was not impressed with R.N.’s evidence. He said he was “not very helpful” and, because his recollection for detail was “most lacking … he was not a very reliable witness in respect of details.” The trial judge said he approached R.N.’s evidence with caution.

[14] The appellant submits that the trial judge’s assessment of R.N.’s evidence was unfair because the details on which his evidence was lacking related to timing issues, and not what happened the night the complainant came to his place. In our view, it was open to the trial judge to consider R.N.’s memory issues to be more far-reaching. Having done so, there was little, if any, value that his evidence could have had in a W.(D.) analysis. Moreover, in his analysis of the charges arising from the sexual assault incident, the trial judge referred to the “totality of the evidence” in referencing W.(D.) one last time. We cannot conclude that R.N.’s evidence did not form part of this totality.

[15] We dismiss this ground of appeal.

The Appellant’s Evidence on the Sexual Assault Incident

[16] The appellant testified that he did not sexually assault the complainant. In his examination-in-chief, he twice said that (albeit in slightly different ways), after he arrived home from work, he argued with the complainant and went straight to bed. When he woke up in the morning, the complainant was gone. When asked by his counsel, “did you ever have sex with her that day at all”, the appellant answered: “No. Oh, she started to give me oral sex in the living room.” The appellant elaborated on this theme, emphasizing how he did not want it to happen and that he eventually repelled the complainant.

[17] The trial judge concluded that the appellant was “making things up” and that “he was trying to deceive me.” This was due to the fact that the appellant initially failed to mention any sexual activity with the complainant. The trial judge further characterized his evidence on this issue as “improbable, unlikely, and it did not happen. I do not believe him.”

[18] The appellant submits that the trial judge misapprehended the appellant’s evidence when he noted that the oral sex revelation occurred “later on in his testimony” and “towards the end of his evidence”, when it in fact occurred in-chief and shortly after his earlier narrative accounts. The appellant contends that this temporal mistake unfairly resulted in the rejection of his evidence.

[19] We agree with the submission that the trial judge erred in characterizing the point in time during the appellant’s testimony when he first mentioned oral sex. This may have been caused by the trial judge’s own questions to the appellant on this issue at the end of his testimony. Nonetheless, it was open to the trial judge to find that the appellant’s account of what happened that night changed significantly and seriously damaged his credibility.

[20] More importantly, the trial judge considered the appellant’s evidence on this issue to be improbable in and of itself. He gave cogent reasons for rejecting the appellant’s account, including the fact that the appellant was over one foot taller and 100 pounds heavier than the complainant. The trial judge’s assessment of the appellant’s believability on this issue is entitled to substantial deference: R. v. G.F. , 2021 SCC 20 , 404 C.C.C. (3d) 1, at para. 81 .

[21] We dismiss this ground of appeal.

Disposition

[22] The appeal is dismissed.

“Gary Trotter J.A.”

“L. Sossin J.A.”

“L. Favreau J.A.”