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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220914 DOCKET: C69535

Trotter, Thorburn and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

S.A. Appellant

Counsel: S.A., acting in person (appearing by video conference) Michael Lacy, appearing as duty counsel Erica Whitford, for the respondent

Heard: September 6, 2022

On appeal from the convictions entered by Justice Bruce W. Duncan of the Ontario Court of Justice on September 23, 2020.

REASONS FOR DECISION

Background

[1] The appellant was charged with six offences against his wife – four counts of assault, one count of sexual assault and one count of threatening. The incidents occurred between December 2016 and August 2018 in the context of an unhappy and deteriorating marriage.

[2] The appellant was convicted of sexual assault and one count of assault. The complainant’s evidence on the assault charge was corroborated to a degree by a dentist with whom the complainant worked, who saw bruises on her face shortly after the incident. The trial judge accepted the evidence of the dentist.

[3] The appellant testified and denied all of the allegations. On the sexual assault count, he called one witness – a neighbour – who testified that the victim admitted to him that she had fabricated the sexual assault allegation. The trial judge rejected his evidence.

[4] The trial judge found the victim to be “a very credible witness.” With respect to the appellant, the trial judge said:

By contrast, the defendant attempted, I think, to portray himself as always being calm, cool, and polite during their arguments. I found that that was simply not believable. He also seemed to go out of his way to mention how religious he is, as if I should find that to be impressive or a trait that bolstered his credibility. He rambled on excessively. Aside from those comments there was little that could be said about the defendant’s evidence one way or the other.

[5] The trial judge said that, although he believed the victim’s evidence, he thought it appropriate to look for evidence that supported her allegations. After reviewing the evidence in this way, the trial judge found the appellant guilty on the two counts described above.

Arguments on appeal

[6] The appellant alleges a number of errors in his Notice of Appeal, presumably prepared with the assistance of previous counsel. Mr. Lacy, acting as duty counsel, made helpful written and oral submissions on the sexual assault conviction.

[7] The appellant made oral submissions on his own behalf. On the day after the hearing of the appeal, and over the objection of the Crown, we permitted the appellant to file written submissions. The appellant’s submissions do not address the trial judge’s analysis of the evidence called at trial nor his conclusions. Consequently, we are left to consider the grounds raised in the Notice of Appeal and Mr. Lacy’s submissions, as well as the Crown’s response.

[8] In his Notice of Appeal, the appellant submits that the verdicts were unreasonable and cannot be supported by the evidence. We disagree. The victim’s evidence alone was capable of supporting the trial judge’s findings on the two counts on which the appellant was convicted. It was open to the trial judge to accept this evidence. He gave thorough reasons that explained his findings.

[9] The appellant also contends that the trial judge erred in his application of the burden of proof as it related to credibility in R. v. W.(D.), [1991] 1 S.C.R. 742. He submits that, having found that the appellant’s evidence was unremarkable one way or another, it should have led him to have a reasonable doubt on all counts.

[10] We do not accept this submission. The trial judge carefully explained how he considered the evidence of the victim and the appellant, in light of the evidence as a whole. He took account of the context in which the events occurred – a crumbling marriage.

[11] The appellant submits that the trial judge erred in rejecting the evidence of the appellant’s neighbour concerning the alleged recantation of the sexual assault allegation. Again, we disagree. It was open to the trial judge to reject the evidence of this witness. As the trial judge said, he was a very poor witness.

[12] On the appellant’s behalf, Mr. Lacy submits that the trial judge engaged in stereotypical reasoning when he looked for confirmation of the victim’s evidence on the sexual assault count. Further, he submits that the trial judge erred in finding that the complainant’s evidence was self-corroborating. We do not accept these submissions.

[13] The complainant testified that the appellant entered the separate bedroom in which she slept, which she locked, and had sex with her against her will. She became pregnant as a result. The appellant acknowledged having sex with the complainant in the bedroom where she had re-located, but said that it was consensual. He said that the complainant came on to him. The trial judge made the following findings:

I find it highly improbable that [the complainant] would engage in consensual sex with the defendant at the relevant time. They had not had sex for months. As she pointed out she was planning or hoping to leave the marriage and the last thing she needed was another child. That she would not only consent to sex under those circumstances but would initiate it strains credulity. This is particularly so in the context of the state of the marriage. They were essentially living separate and apart though still under the same roof. She slept in a separate bedroom that she locked, though it was easy to open. There was no intimacy or affection between them. In my view, this situation is a circumstance that adds substantial weight to her account and detracts from his. While it is not evidence of a separate witness, it is in my view circumstantial evidence that has the same corroborative effect. This corroboration fortifies my belief in the truthfulness of the complainant’s evidence and convinces me beyond a reasonable doubt of the guilt of the defendant on this count. [Emphasis added.]

[14] We agree with the Crown that the trial judge’s conclusions were not rooted in stereotypical assumptions about the sexual activity of couples in a troubled relationship (i.e., that a woman in such circumstances would not consent to sexual activity with her estranged partner). The trial judge’s conclusions were grounded in the complainant’s description about their relationship and the circumstances in which she would be prepared to consent to sexual intimacy with the appellant: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 70.

[15] Moreover, the trial judge did not err in treating the surrounding circumstances (i.e., the state of the marriage and the living arrangements) as confirmation of the complainant’s assertion that she did not consent. The trial judge merely located her testimony in the context of the entirety of the evidence, including the appellant’s testimony.

Disposition

[16] The appeal is dismissed.

“G.T. Trotter J.A.”

“J.A. Thorburn J.A.”

“L. Favreau J.A.”