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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20221107 Docket: C68622
Doherty, Hoy and van Rensburg JJ.A.
Between
His Majesty the King Respondent
and
Mohamed Boubacar Appellant
Counsel: Geoff Haskell and Kristianne Anor, for the appellant Jacob Millns, for the respondent
Heard: October 27, 2022
On appeal from the convictions entered by Justice Peter Bawden of the Superior Court of Justice, sitting without a jury, on September 20, 2019.
Reasons for Decision
[1] The appellant and the complainant agreed that the complainant would provide certain sexual services to the appellant for $80. They met at a hotel. He paid her the money. Initially, everything went as contemplated. A dispute developed when the complainant refused to provide certain additional services requested. She called a “male friend” and asked him to come to the room as she was having difficulty with a client. The appellant tried to take the phone away from the complainant as she was speaking to her “male friend”. The complainant struck the appellant with a lamp and a struggle ensued.
[2] The complainant and the appellant gave very similar versions of the events before the complainant struck the appellant with a lamp. They gave very different versions of what happened after that.
[3] The complainant testified, that during the struggle the appellant beat her mercilessly, dealing her at least “100 blows”. He tried to smother her with a pillow and inserted an object in her vagina. She testified she was able to get up and run from the hotel room into the hallway of the hotel. She was naked and began banging on doors looking for help.
[4] The appellant kept the complainant’s cellphone. He later destroyed it and threw the pieces away.
[5] As the appellant left the hotel room, he passed the complainant cowering in the hallway. He threatened her with a baton he had with him.
[6] According to the appellant, he struggled with the complainant, but she got the best of him. She took a baton from under the bed and tried to hit him with it. He managed to take it away from her. She ran out of the room, re-entered briefly but quickly retreated when he raised the baton, and then he fled the room still carrying the baton.
[7] The appellant testified that he fled the hotel room because he feared that the complainant’s friend, who he thought would be armed, would be arriving very shortly. The appellant took the complainant’s cellphone so she and her friend could not use the photo the appellant had sent to the complainant to hunt him down and harm him. The appellant testified he destroyed the phone and disposed of the parts as he was concerned that the complainant and her friend could use the phone to track him.
[8] The appellant testified he suffered serious injuries as a result of the complainant’s attack. He planned to go to the hospital when he left the hotel and he also planned to call the police. He testified he decided to go home and go to the hospital the next day. He did not go to the police.
[9] The police arrived at the appellant’s apartment at about 11:30 a.m. the next day. According to the appellant, he was just about to go to the hospital to get treatment for the serious injuries he had suffered the night before when the police arrived and placed him under arrest. The appellant resisted arrest. The arresting officer had a great deal of difficulty gaining control over the appellant who proved to be both evasive and strong.
[10] The events described above gave rise to 8 charges. The trial judge convicted on 4 and acquitted on 4:
| Offence | Verdict |
|---|---|
| Sexual assault with a weapon (insertion of object into complainant’s vagina) | Not guilty |
| Robbery (theft of money from the complainant) | Not guilty |
| Choking (choked complainant during the struggle in the hotel room) | Not guilty |
| Threatening death (threatened the complainant during the struggle) | Not guilty |
| Assault with a weapon (threatened complainant with the baton in the hallway) | Guilty |
| Assault causing bodily harm (the beating administered to the complainant in the hotel room) | Guilty |
| Theft under $5,000 (the theft of the cellphone) | Guilty |
| Unlawful confinement (the holding of the complainant in the hotel room against her will during the struggle) | Guilty |
[11] Broadly speaking, the trial judge acquitted on the charges for which proof of an essential element of the charge depended entirely on the complainant’s evidence. He convicted on the charges for which there was evidence confirming the complainant’s evidence.
[12] The appellant received an effective total sentence of 14 months with 2 years probation. He had served 882 days, resulting in an effective sentence of time served plus probation.
[13] The appellant appeals conviction only.
Grounds of Appeal
(a) Misapprehension of the Evidence
[14] The appellant alleges that the trial judge misapprehended several aspects of the evidence, including whether the video in the hallway shows the complainant re-entering the hotel room, whether the injuries actually suffered by the complainant were consistent with the extensive beating she described, and whether the appellant’s post-event conduct, especially as it related to the cellphone, was consistent with guilt.
[15] A review of the transcript and the trial judge’s findings in these areas reveals no misapprehension of the evidence. The reasons do, however, reveal a rejection of the appellant’s evidence on these issues and the position advanced by the defence. For example, the trial judge accepted that the description of the complainant’s injuries provided in the notes of the treating nurse was consistent with the complainant having received an extensive beating. Similarly, the trial judge was satisfied the destruction of the cellphone demonstrated a guilty mind, having rejected the appellant’s explanation for the extreme measures he took to destroy and attempt to hide the phone.
[16] There are no material misapprehensions of the evidence.
(b) Uneven Scrutiny
[17] The trial judge’s reasons and the verdicts arrived at belie any suggestion the trial judge did not carefully and critically, fully examine the evidence of both the prosecution and the defence. The examples advanced by the appellant to demonstrate uneven scrutiny ultimately demonstrate nothing more than a reasoned rejection of significant parts of the appellant’s evidence. The trial judge fully explained his reasons for rejecting material parts of the appellant’s evidence. Those reasons demonstrate the high improbability of several parts of the appellant’s evidence.
[18] The reasons also make it clear that the complainant’s evidence was subject to the same careful examination. Although the trial judge accepted the core of her evidence as it related to the struggle in the hotel room and the threat, he did reject other parts of her evidence. He gave careful reasons for his findings both for and against the complainant’s credibility.
[19] The appellant contends that the trial judge’s treatment of the evidence pertaining to the appellant’s injuries and his treatment of the evidence pertaining to the complainant’s injuries demonstrates how the trial judge unevenly examined the evidence. The evidence of the appellant’s injuries came by way of an Agreed Statement of Facts. Clearly, that evidence was credible and the trial judge accepted it. Evidence of the complainant’s injuries came from the complainant and from the observations recorded by the nurse at the hospital where the complainant went for treatment. The trial judge accepted the evidence of the observations of the hospital nurse.
[20] The complainant referred to her injuries in statements she made to the police. The police made notes of those comments. The officers’ notes were not evidence of the injuries suffered by the complainant. They were admissible for impeachment purposes only, unless adopted as accurate by the appellant.
[21] The trial judge’s treatment of the evidence relating to the appellant’s injuries and the evidence relating to the complainant’s injuries does not reveal any uneven scrutiny. The trial judge’s analysis does reveal a proper application of different rules of evidence to different kinds of evidence.
(c) The Alleged Error in the Self-Defence Analysis
[22] The trial judge properly instructed himself on the law in respect of self-defence. He held that there was an air of reality to that defence. The trial judge considered the relevant evidence and made a finding that the appellant did not act for defensive purposes during the struggle with the complainant. On the trial judge’s findings, the appellant was the aggressor in the struggle from the moment the confrontation began with the appellant’s attempt to take the complainant’s cellphone from her. These findings were open on the evidence. The appellant’s submissions in large part ask this court to revisit those findings. We cannot.
[23] The trial judge’s finding that the appellant did not act for defensive purposes meant the self-defence claim could not succeed: Criminal Code, R.S.C. 1985, c. C-46, s. 34(1)(b).
Conclusion
[24] The appeal is dismissed.
“Doherty J.A.”
“Alexandra Hoy J.A.”
“K. van Rensburg J.A.”