Publication Ban 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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are (a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall (a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider (a) the right to a fair and public hearing; (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (f) the salutary and deleterious effects of the proposed order; (g) the impact of the proposed order on the freedom of expression of those affected by it; and (h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (a) the contents of an application; (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

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: 20221206 Docket: C69000

Before: Tulloch, Benotto and Trotter JJ.A.

Between: His Majesty the King, Respondent and S.F., Appellant

Counsel: Sourena Sarbazevatan and Adam Yoshida, for the appellant Michael Fawcett, for the respondent

Heard: December 1, 2022

On appeal from the conviction entered by Justice Simon C. Armstrong of the Ontario Court of Justice on December 30, 2019.

Reasons for Decision

[1] The appellant was convicted of three counts of assault and one count of sexual assault against his wife. He appeals, alleging that the trial judge erred in his assessment of credibility on all of the charges and misapprehended the evidence regarding the sexual assault.

The sexual assault

[2] When the appellant was arrested on June 8, 2018, the complainant initially told the police that she had not been sexually assaulted. However, she later disclosed that, in October 2017, the appellant forced her to engage in non-consensual anal intercourse. The appellant submits here, as he did to the trial judge, that this reversal should have been enough to raise a reasonable doubt as to whether a sexual assault occurred.

[3] We do not agree.

[4] The trial judge specifically rejected this submission, as he was entitled to do. He accepted the evidence of the complainant that she did not initially tell the police about the October 2017 assault because she was afraid of retaliation from her husband. The trial judge added that she was in a “bad physical and emotional state” at the time. These findings were open to him on the evidence.

[5] The appellant also argues that the trial judge misapprehended the evidence about the October 2017 assault. The trial judge said that the complainant said “90 percent of the occasions” were non-consensual. The appellant relies on the complainant’s evidence, when she said “90 percent of the situation” was not consensual.

[6] We see no material misapprehension.

The assaults

[7] The appellant submits generally that the trial judge erred by accepting any of the complainant’s evidence, in the face of her convoluted and contradictory evidence.

[8] The trial judge was well aware of the frailties of her evidence. He said:

I have been very careful in my assessment of [the complainant’s] evidence. The way she presented her testimony was not as helpful as it could have been. Rather than answer the specific question she was asked, [she] would often make a general statement, or give an opinion, or a conclusion, or make reference to documents she said she had given the police but were not before the court, or say that she had already answered the question.

Sometimes her answers were convoluted and confusing and had to be unpacked through further questioning before they could be understood. [Emphasis added.]

[9] With this self-caution, it was open to the trial judge to accept her evidence with respect to the assaults.

[10] The assault that took place in January 2017 caused an injury to the complainant’s thumb. She adduced evidence that her thumb was still bruised six months after the assault. The appellant submits that the trial judge erred in concluding that the assault occurred. The appellant says that there was no medical evidence on which the trial judge could rely. Instead, the doctor merely said that everyone heals differently.

[11] We do not agree with the appellant.

[12] The finding that the assault occurred was irrespective of the injury to the thumb having lasted more than six months. The trial judge did not rely only on the doctor’s evidence that the injury could last. He rejected the appellant’s submission and accepted the evidence of the complainant. He said:

I did not have the difficulties with this evidence that defence counsel had. [The complainant] was unshaken in her testimony that her thumb was injured while she was being assaulted by [the appellant], and she did not remember how or in what place in her home her thumb was injured. I found that by agreeing with some of the suggestions put to her by counsel as to how the injury could have occurred added to her credibility and the reliability of her evidence. I did not see any of the alleged discrepancies that defence counsel put to her as taking away from her main point that the thumb injury resulted from an assault by the defendant. I also disagree with counsel that she fabricated this evidence entirely.

[13] The appeal is dismissed.

“M. Tulloch J.A.” “M.L. Benotto J.A.” “Gary Trotter J.A.”