Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court of Appeal for Ontario

COURT OF APPEAL FOR ONTARIO

DATE: 20231030 DOCKET: C67798

Gillese, Brown and Nordheimer JJ.A.

BETWEEN

His Majesty the King Respondent

and

Cody Allan Williams Appellant

Counsel: Howard L. Krongold, for the appellant Brent Kettles, for the respondent

Heard: October 24, 2023

On appeal from the conviction entered on June 11, 2018, by Justice Sarah S. Cleghorn of the Ontario Court of Justice.

Reasons for Decision

[1] Following a trial by judge alone, the appellant was convicted of sexual assault and sexual interference, contrary to ss. 271 and 151 of the Criminal Code, R.S.C. 1985, c. C-46. The count of sexual assault was conditionally stayed based on the principle outlined in R. v. Kienapple, [1975] 1 S.C.R. 729. He was sentenced to eight years’ imprisonment. The primary issue at trial was identification.

[2] The appellant appeals against conviction. [1] He contends that the trial judge erred in her assessment of the complainant’s voice identification evidence and that a new trial is required.

[3] For the reasons that follow, the appeal is dismissed.

Background

[4] The appellant and the complainant both attended a small party on May 2, 2015, at a residence in Lac Seul First Nation. The appellant was 24 years old at the time and the complainant was 14 years old. Both are Indigenous and Lac Seul First Nation is their home community. While the complainant did not know the appellant well, she testified that she had seen him before and heard him speak a few years earlier at the “complex” where he worked.

[5] The appellant did not testify at trial. On the issue of identification, defence counsel conceded that the complainant knew who the appellant was and did not need to point him out in the courtroom.

[6] The complainant became extremely intoxicated at the party and two individuals at the party took her to a bedroom to “sleep off” the effects of the alcohol. When she awoke, the party was over and only the homeowners, she and the appellant were still present. She decided to walk home and left the residence. The trial judge found that the appellant watched the complainant leave the residence and followed her.

[7] While walking home, the complainant heard someone walking behind her, but she could not make out who it was. At one point, she was walking on a secluded wooded trial. It is there that the complainant was sexually assaulted. She remembers being pushed onto her hands and knees on the ground, the person behind her trying to pull her pants down, and then holding her down so she could not move. The complainant’s next memory was that the assailant used his fingers to penetrate her vagina before anally penetrating her with his penis. The complainant stood up to collect her underwear and pants and saw the appellant’s face.

[8] At trial, two witnesses testified to observing the appellant and the complainant emerging from the wooded area on the night of the incident. The witnesses walked the complainant to her home. The complainant testified that she heard the appellant’s voice before the assault and again when speaking with these witnesses.

[9] The day after the assault, the complainant went to the hospital where bruising on her knees and on the top of her right foot were observed, as well as fissures around the verge of her anal area. The nurse also collected swabs for DNA samples. There were profiles from two different individuals generated from the vaginal swabs collected. One profile was determined to have been contributed from the complainant’s boyfriend. The second profile was compared to the DNA profile of the appellant; he “could not be excluded” as the contributor, and the random match probability was 1 in 190,000.

[10] The trial judge considered the frailties in the complainant’s testimony but concluded that, despite those frailties, “on the totality of the evidence, there is only one rational conclusion available: [the appellant] forced intercourse upon [the complainant] along the wooded trail”. In reaching that conclusion, the trial judge pointed out that the complainant was consistent in remembering being pushed to the ground, being on her hands and knees, and being sexually assaulted, and that her injuries documented the following day were consistent with the account of how she was attacked. The complainant was also consistent that she saw the appellant’s face after the attack when she stood to collect herself and her clothing. Further, the DNA evidence incriminated the appellant.

[11] On appeal, the appellant argues that the trial judge erred by failing to grapple with the frailties of the complainant’s voice identification evidence and relying on it without scrutiny. He also argues that the trial judge misapprehended the voice identification evidence when she said that the complainant testified that she heard the appellant’s voice before and during the assault, whereas the complainant’s testimony was that she heard the appellant’s voice before and after the assault when they were speaking to the witnesses.

Analysis

[12] We do not agree that the trial judge erred in relying on the complainant’s recognition of the appellant’s voice.

[13] The voice recognition evidence must be considered in context. It was but one small piece of evidence in the constellation of evidence on which the trial judge relied for conviction. The trial judge convicted the appellant based on the combined effect of the complainant’s evidence, the DNA evidence, the complainant’s physical injuries, the complainant’s prior knowledge of the appellant, the evidence of the two witnesses who observed the appellant and the complainant emerging from the wooded trail after the incident and, significantly, the complainant’s identification of the appellant following the assault when she stood up to collect her clothing. The trial judge’s minor mischaracterization of the voice recognition evidence had no effect on her overall understanding of the evidence.

[14] Further, while the Crown acknowledges that the trial judge did not specifically self-instruct regarding the frailties of voice recognition evidence, in our view, the trial judge’s scrutiny of the frailties in the complaint’s evidence more broadly was sufficient to satisfy reliability concerns. She discussed the level of the complainant’s intoxication on the night in question, pointing out that the complainant drank to the point where she passed out at the party and, at various points, was in a blackout stupor. The trial judge also examined the inconsistences in the complainant’s trial testimony with the statements she gave to the police and those to the nurse when she was examined the day after the assault.

[15] After identifying frailties in the complainant’s evidence, the trial judge pointed out evidence on which the complainant remained consistent throughout: she remembered being pushed to the ground, being on her hands and knees, and being sexually assaulted. She observed that the complainant’s injuries, documented the day following the assault, were consistent with the complainant’s account of the attack. The complainant was also consistent in her testimony that she recognized the appellant’s voice before the attack and saw his face after the attack when she stood up to collect herself and her clothing. The trial judge further identified that the appellant had the opportunity to commit the offences because he was last seen at the party with the complainant, left shortly after she did, and two witnesses testified to seeing him and the complainant emerging from the wooded area along the trail. The DNA evidence also incriminated the appellant.

[16] In the circumstances, we do not agree that the trial judge placed uncritical reliance on the complainant’s voice recognition evidence nor do we accept that she placed too much weight on it.

Disposition

[17] Accordingly, the appeal against conviction is dismissed.

“E.E. Gillese J.A.”

“David Brown J.A.”

“I.V.B. Nordheimer J.A.”

Footnote

[1] He initially sought leave to appeal against sentence but later abandoned the sentence appeal.