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. 486.4 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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

Date: 20240604 Docket: C69869

Before: Hourigan, Brown and Coroza JJ.A.

Between: His Majesty the King, Respondent And: M.G., Appellant

Counsel: Nathan Gorham and Breana Vandebeek, for the appellant Dana Achtemichuk, for the respondent

Heard: May 14, 2024

On appeal from the conviction entered on December 8, 2020 and the sentence imposed on September 24, 2021 by Justice Katherine B. Corrick of the Superior Court of Justice, with reasons reported at 2021 ONSC 6359.

Reasons for Decision

[1] The appellant was convicted of two counts of assault, uttering a threat to cause bodily harm, and sexual assault causing bodily harm all against his wife. He was sentenced to three years in prison. He appeals from conviction and sentence.

[2] The offences took place on three separate occasions in 2013, 2015, and 2016. By 2013, the appellant and complainant had been married for over 30 years. However, the complainant suspected the appellant of being unfaithful to her. The complainant alleged that on the first occasion, the appellant grabbed her arms, pushed her, and threatened to “take her face down”. On the second occasion, when the complainant reached for the appellant’s cell phone during an argument, he grabbed her hand and twisted it toward her back, again threatening to “take her face down”. On the third occasion, the complainant alleged that the appellant sexually assaulted her when he came out of the bathroom in the family home wearing only a towel, approached her, told her that she had a matrimonial duty to be intimate with him, and forced vaginal intercourse on her despite her protestations and attempts to escape. During her efforts to escape, she injured her ankle.

[3] The complainant reported these incidents to police in November 2016 and testified to them at a preliminary inquiry. However, two days prior to testifying at trial, the complainant swore an affidavit stating her memory of the events was “vague and blurred” and that she “could no longer adopt her statements to the police and at the preliminary inquiry” nor “vouch that these statements were accurate”.

[4] At the outset of the trial, the Crown applied to introduce evidence of the appellant’s discreditable conduct toward the complainant. That evidence consisted of the ongoing disputes and arguments the parties had throughout their marriage and evidence that the appellant had previously threatened to punch the complainant in the face. The Crown also applied for an order permitting evidence of the appellant’s discreditable conduct to apply across the various counts against him. Defence counsel agreed that the trial judge could receive the evidence subject to argument on the proper uses that could be made of the evidence at the conclusion of the trial.

[5] During her evidence at trial, the complainant minimized the appellant’s actions, testified that she should have behaved differently toward the appellant, and indicated that in her culture people did not involve police in family matters. The trial judge rejected the complainant’s recantation and found that the inconsistencies in her evidence did not cause her to “discount” the evidence of the complainant “as a whole”. [1]

[6] After the appellant was convicted but before the sentencing proceedings, the complainant sent an email to the Crown stating she was “100% sure that [the appellant] did not hurt [her] physically or sexually” and that it was her hallucinations that caused her to make up allegations. Defence counsel then applied either to reopen the trial to allow the complainant to testify again or, in the alternative, for a mistrial to be declared. The trial judge dismissed the application.

[7] The appellant raises three issues on the conviction appeal.

[8] First, the appellant submits that the trial judge erred in her assessment of the complainant’s credibility by failing to approach her evidence cautiously and neutrally, and by applying stereotypical reasoning about how women who experience domestic violence will behave. We do not accept this submission.

[9] The trial judge’s credibility assessment is owed considerable deference. It was open to her, on this record, to reject the complainant’s recantation and accept the complainant’s version of the sexual assault as described during the preliminary inquiry. The trial judge found that it was “obvious” that the complainant was in extreme discomfort testifying about the sexual assault and that she was concerned that the appellant had been cut off from contact with his children since the incidents. The trial judge accepted portions of the complainant’s evidence that formed the basis of the charges notwithstanding that her evidence was, as the trial judge recognized, “not without its problems”. We see no palpable and overriding error in her analysis and accordingly there is no basis to interfere with the trial judge’s conclusion.

[10] Nor do we accept that the trial judge applied “paternalistic” or stereotypical reasoning in her reasons. We see nothing in these reasons that would support this assertion.

[11] The appellant’s second argument is that the trial judge erred in her use of the prior discreditable conduct evidence. We see no error. The trial judge admitted this evidence only insofar as it illuminated how the appellant and complainant interacted with each other during their marriage, particularly with respect to the complainant’s suspicion of her husband’s infidelity, and to put into context the reaction of the complainant in the moments before the sexual assault. In our view, the trial judge appropriately weighed the probative value of this evidence with its potential for prejudice. Contrary to the appellant’s submissions, the trial judge did not use this evidence for a prohibited purpose. The trial judge specifically cautioned herself against using this evidence for propensity reasoning.

[12] Third, the appellant argues that the trial judge erred by not reopening the trial or declaring a mistrial upon receipt of the complainant’s email post-conviction. We disagree.

[13] At the conclusion of his submissions on the appeal, Mr. Gorham for the appellant sought an adjournment to procure further “fresh evidence” regarding the complainant’s report of hallucinating in her post-conviction email. The Crown opposed the adjournment as unnecessary for the resolution of the appeal. We reserved our decision on the adjournment.

[14] We refuse to adjourn this appeal so that appeal counsel can embark on a process that is intended to gather evidence that would lead to a fresh evidence application. In our view, based on the submissions made by counsel at the oral hearing of this appeal, there is no basis to believe that adjourning the appeal could reasonably lead to the discovery of evidence that might meet the test for admissibility as fresh evidence.

[15] The trial judge correctly observed that on the application to reopen based upon new evidence, she was required to apply the test from Palmer v. The Queen, [1980] 1 S.C.R. 759. The trial judge was familiar with all the evidence that had been adduced during the trial, including the complainant’s recantation and her evidence that she was suffering from mental stress when she originally reported to police and during the preliminary inquiry. In the circumstances, it was open to the trial judge to conclude that the complainant’s email asserting the sexual assault allegations were not true because she was hallucinating offered no new information. It was simply a reiteration of the complainant’s evidence at trial, evidence which the trial judge found attempted to minimize the appellant’s involvement in the offences. We see no error in the trial judge’s ruling. Accordingly, to the extent that the appellant wishes to procure further medical records or other evidence demonstrating the extent of the complainant’s psychological issues, in our view, appeal counsel has failed to establish that this evidence would meet the test of admissibility as outlined in Palmer.

[16] On the sentence appeal, the appellant contends that the trial judge erred in her consideration of aggravating and mitigating factors, and in imposing a penitentiary sentence rather than a conditional sentence order.

[17] The trial judge reviewed a pre-sentence report and multiple letters of support submitted on behalf of the appellant. The letters attested to the appellant being a hard-working, honest, and kind individual. The appellant’s daughters indicated in the pre-sentence report that the appellant is a good parent and that he has suffered an emotional toll as a result of being separated from his family. The trial judge also noted that there were potential collateral consequences such as the loss of a right to appeal a removal order and the threat of COVID-19 in jails.

[18] However, as the trial judge noted, there were several aggravating factors including that the sexual assault involved vaginal penetration. In the end, the trial judge determined that a global sentence of three years was proportionate. As this court has noted: “absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary”: R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 77. The reasons of the trial judge reveal no error in principle and the sentence is entirely fit.

[19] For these reasons, the appellant’s request for an adjournment is denied. The conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is also dismissed.

“C.W. Hourigan J.A.”

“David Brown J.A.”

“S. Coroza J.A.”

Footnotes

[1] The trial judge permitted the Crown to cross-examine the complainant pursuant to s. 9(2) of the Canada Evidence Act, R.S.C., 1985, c. C-5. She also concluded that portions of the preliminary hearing testimony should be admitted because it was necessary, and the procedural reliability threshold had been met. No issue is taken with either ruling.