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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20241003 DOCKET: COA-23-CR-0088
Simmons, van Rensburg and Thorburn JJ.A.
BETWEEN
His Majesty the King Respondent
and
J.P. Appellant
Counsel: Mark C. Halfyard, for the appellant Jessica Smith Joy, for the respondent
Heard: August 15, 2024
On appeal from the convictions entered by Justice Paul K. Burstein of the Ontario Court of Justice on July 15, 2022.
REASONS FOR DECISION
A. OVERVIEW
[1] The appellant was tried by judge alone in respect of five alleged incidents of sexual assault on the complainant, A.E. He was convicted of three counts (counts 1, 2 and 4) and acquitted of two (counts 3 and 6). A count of simple assault was dismissed at the Crown’s invitation at the conclusion of the Crown’s case. The appellant was sentenced to two years’ imprisonment and three years’ probation. He appeals from the convictions.
[2] Following oral argument we dismissed the appeal with reasons to follow. These are our reasons.
B. Facts
[3] A.E. and the appellant were involved in an intimate relationship that started in September 2014. They had a child together in 2016, became engaged in 2017, and then separated in March 2019. Following their separation, A.E. alleged that the appellant had sexually assaulted her on several occasions in the course of their relationship.
[4] A.E. testified that most of the incidents (counts 1, 2 and 4) involved anal sex, something she had repeatedly refused. Count 4 involved both non-consensual anal penetration and vaginal penetration. Count 3 arose from an incident involving the appellant’s insertion of a sex toy into her anus while she was sleeping. Count 6 involved an incident of forced vaginal intercourse.
[5] The appellant testified at trial and acknowledged that sexual activity had taken place on some of the occasions described by A.E. (counts 1, 3 and 4), but he denied that such sexual activity was non-consensual. He also testified that none of the incidents involved anal intercourse, and that on the occasion when he had “introduced” the sex toy he did so vaginally, with A.E.’s consent, and that he stopped when A.E. indicated she wasn’t a fan of it. With respect to counts 2 and 6 the appellant denied that any sexual activity had occurred on the occasions described by A.E.
[6] The trial judge rejected the appellant’s evidence about whether any of the sexual activity at issue was consensual and about whether anal penetration had taken place. He provided three main reasons. First, he found that some of the appellant’s evidence on cross-examination was inconsistent with his evidence in-chief and that, in particular, the appellant had added important details in cross-examination that he had not provided previously. The trial judge stated, “the nature and number of ‘additions’ in [the appellant’s] testimony showed a pattern of deliberate embellishments”, which standing alone would have led him to reject the appellant’s testimony.
[7] Second, while cautioning himself against relying too heavily on testimonial demeanour, the trial judge found it significant that the appellant was often combative with Crown counsel during his cross-examination.
[8] Third, the appellant’s overall credibility was affected by what the trial judge characterized as the appellant’s weak attempts to reconcile some of his omissions. The trial judge concluded that, “even when considered together with the other evidence in the case, [the appellant’s] testimony did not leave [him] with a reasonable doubt on any of the five charges.”
[9] Although the trial judge found A.E. to be a credible witness and generally accepted her evidence, he pointed to certain inconsistencies and memory gaps in her testimony on counts 3 and 6. With respect to count 3, the sex toy incident, A.E. had initially connected the incident to her return from a trip to Disney World, but later clarified that it was count 4 that involved an incident following that trip. She was never asked to explain why she initially connected the sex toy incident to her later trip to Disney. Also, A.E. provided very little detail about the appellant’s communication to her about the sex toy, and more importantly her response. She also conceded in cross-examination that she had gone shopping with the appellant for similar sex toys in the past. These factors diminished the reliability of her testimony on count 3 about her state of mind on the day in question. As for count 6, it was only after repeatedly refreshing her memory that A.E. testified that this incident involved nonconsensual intercourse. Again, her evidence was not sufficiently reliable to persuade the trial judge beyond a reasonable doubt that she had been sexually assaulted on that occasion.
[10] The trial judge explained that these concerns did not lead him to question the honesty of A.E.’s testimony in relation to the other three incidents, which he “fully accept[ed]” as reliable. He observed that his doubt about the reliability of her evidence was specific to the testimony she gave in relation to counts 3 and 6, and that having regard to the nature and circumstances of the other three incidents (counts 1, 2 and 4), he fully accepted A.E.’s evidence as reliable. He noted that, “[e]ach of those incidents was characterized by something sufficiently memorable that I am satisfied [A.E.] was able to reliably recall being anally penetrated by [the appellant] without her consent.”
C. Issues on Appeal
[11] The appellant submitted that the trial judge made three errors in assessing the evidence of the appellant and A.E., any one of which would undermine his credibility analysis and warrant a new trial. [1] These errors were reframed and set out by the appellant in oral argument: (1) the trial judge erred in characterizing the elaborations in the appellant’s cross-examination evidence as “inconsistencies” that impugned his credibility; (2) the trial judge misapprehended the evidence or made logical errors in assessing A.E.’s reliability, which led to an unreasonable verdict; and (3) the trial judge erred in finding it “entirely irrelevant” to his credibility analysis that A.E. did not seek assistance during the incidents.
(1) The trial judge did not err in finding inconsistencies in the appellant’s evidence that impugned his credibility
[12] As his main ground of appeal, the appellant asserted that the trial judge erred in rejecting his evidence in part because he added details to his evidence during cross-examination that he had not provided during examination-in-chief. The trial judge characterized the additions as “inconsistencies” and noted that these added details showed a pattern of deliberate embellishment that undermined the appellant’s credibility. The appellant submitted that the additional details that he provided during cross-examination were elaborations that were responsive to the Crown’s questions and did not amount to inconsistencies with his earlier evidence. The appellant relied on R. v. Duong, 2014 ONCA 375, 311 C.C.C. (3d) 139, at paras. 58-61, leave to appeal refused, [2014] S.C.C.A. No. 268 and R. v. R.C., 2008 ONCA 98, at para. 9, to argue that it was wrong for the trial judge to reject his evidence based on a failure to provide details, where he had simply responded to questions in-chief that did not call for a detailed response.
[13] We disagree with the appellant’s submission that the addition of details on cross-examination was a function of how the questions at each stage were put to him. Contrary to the appellant’s submissions, he was not invited to provide only a “high level” or “generic overview” description of the events on direct examination, while being asked about the incidents “in more graphic detail” in cross-examination. Rather, the appellant was asked about what transpired on the occasion covered by each count in much the same way during both direct and cross-examination. Throughout his evidence in-chief, the appellant provided a fair amount of detail. For example, the appellant recalled, in respect of count 3, what rooms he and A.E. were in before and after the sex toy incident and specifically what each of them had said; and in respect of count 1 (which was alleged to have occurred in January 2016, more than six years before he testified), who walked through the door first, the interactions and conversation he and A.E. had with his father and step-mother before they went upstairs, and what each of them had done leading up to what he described as consensual vaginal intercourse. Indeed, a focus of the Crown’s cross-examination was on the improbability of the appellant’s ability to recall significant details about the events that, on his account, involved consensual sexual activity.
[14] It was in this context that the appellant offered details under cross-examination that he had not included on direct examination less than an hour earlier. Crown counsel pointed out the additional details on cross-examination, resulting in repeated objections by defence counsel that this line of attack was unfair because the appellant had not been asked for these details on direct examination. The trial judge noted that the defence counsel’s objections were neither fair nor appropriate because he could deal with the issue by addressing it in his submissions or by seeking to re-examine the appellant. The trial judge also noted that he could double check the record to resolve any discrepancy in the evidence.
[15] In his reasons for decision, the trial judge concluded that, with respect to three of the four incidents, the appellant “purported to recall specific details” and that his testimony in cross-examination was inconsistent with his testimony in-chief with respect to one or more details. The trial judge continued:
More importantly, in each instance, the inconsistencies involved [the appellant] having added an important detail in cross-examination that he had not volunteered when answering on the same topics in chief. Before adding those details to his earlier versions, [the appellant] claimed that he had a clear memory of the events which he had already described in chief. While I recognize that Crown counsel did sometimes misstate [the appellant’s] answers in chief when cross-examining him about his initial accounts, I am satisfied that there were still other examples of [the appellant] adding details central to his narrative of events which were not a function of how he was questioned. The details added by [the appellant] in cross-examination were always seemingly favorable to him or to his overall position that he only ever engaged in consensual sex with [A.E.]. The nature and number of “additions” in [the appellant’s] testimony show a pattern of deliberate embellishments, not innocent flaws in his memory. This factor alone would have led me to reject [the appellant’s] testimony in its entirety. [emphasis in original]
[16] The trial judge’s analysis reveals no error. His assessment of the appellant’s credibility and reliability are entitled to deference: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 81-82. The trial judge, who was aware of the defence position that the addition of details was in response to the Crown’s specific questions, was clearly (and in our view, justifiably) not persuaded by the argument that the differences in the appellant’s evidence were due to the way in which he was questioned. As the appellant’s counsel acknowledged, the omission from one part of a witness’s evidence of a material fact included later can be viewed as an inconsistency: see R. v. Hill, 2015 ONCA 616, 339 O.A.C. 90, at para. 45. The trial judge reasonably concluded that the appellant’s credibility was undermined by the inconsistencies between his accounts on direct and cross-examination and the fact that the appellant’s elaborations were always seemingly favorable to him or to his position that he only engaged in consensual sex with A.E. We see no error in the trial judge’s conclusion that this was an important factor (although not the only factor) that led him to reject the appellant’s testimony.
(2) The trial judge did not misapprehend the evidence or make any logical error that tainted his verdict
[17] In his factum, the appellant submitted that the trial judge materially misapprehended the evidence when he said count 2 was characterized by something sufficiently memorable to support the complainant’s reliability, when in fact, that count related simply to a claim of the appellant sexually assaulting her after coming home from work. In contrast, the trial judge acquitted the appellant on count 3, which involved something that arguably was significantly more memorable – the use of an anal sex toy. In oral argument, the appellant emphasized that the trial judge effectively used memorability as a proxy for reliability and yet failed to recognize that, on the complainant’s evidence, being awakened by pain from the use of an anal sex toy was something that should have been equally memorable as the alleged memorability of the incidents on which the trial judge convicted, especially count 2. Because the trial judge had doubts about the reliability of the complainant’s evidence concerning use of the anal sex toy, it was not sufficient for the trial judge to say that he was satisfied that each of the other counts on which he convicted was sufficiently memorable that the complainant was able to reliably recall being anally penetrated on those occasions without her consent. The theme of the complainant’s evidence was that anal sex was off limits. Concern about the reliability of her evidence in that respect on one occasion should have affected all the other counts.
[18] In oral argument, the appellant agreed that this ground of appeal could also be framed as the trial judge making a logical error that resulted in an unreasonable verdict: see R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 96-97, per Fish J. (dissenting in the result); R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 16, 19-21, per Fish J. (dissenting in the result).
[19] In this regard, the appellant submitted that the trial judge appears to have accepted A.E.’s evidence that she never consented to anal sex, but that with respect to count 3, he had a reasonable doubt that she had woken up from sleep having been violated anally with a sex toy. This was inconsistent reasoning about what A.E. was willing and unwilling to consent to. The appellant asserted that the doubt the trial judge had in respect of count 3, the sex toy incident, ought to have informed his analysis of the other counts, and that it was not sufficient to accept A.E.’s evidence on the basis that the events in relation to counts 1, 2 and 4 were sufficiently memorable.
[20] We rejected this ground of appeal. In her evidence in-chief respecting count 3 A.E. initially testified that the incident occurred on her return from a trip to Disney World, and that she and the appellant had a conversation while she was away in which he said he had a “surprise” for her. She testified that she woke up that night to the appellant having inserted a purple sex toy into her anus, and that he said that was the surprise. She said she told him she did not like anal, she did not want to do it and she needed him to respect her answer. Later in her evidence in-chief she corrected herself to say that her return from Disney preceded the count 4 incident, when she found the appellant had bought her an item of green lingerie. She also testified under cross-examination that she and the appellant had gone shopping for sex toys in the past but they only bought vaginal toys. However, in response to a suggestion that the purple sex toy was used consensually between the two of them and that she had asked to use it on him and he declined the complainant responded:
I never gave him consent to use that on me. I told him, I said if, I said to him, I said “If you’re gonna do it then maybe I’ll let you try” but he said, “No,” and I said, “Okay, well I don’t wanna do this either, so no”
[21] The trial judge, as he was required to, considered each count separately to determine whether the Crown had proven the appellant’s guilt beyond a reasonable doubt. [2] Nonetheless, he was required to assess the reliability and credibility of both the appellant and the complainant based on the whole of the evidence. He acquitted the appellant on count 3 because he had a reasonable doubt about whether A.E. was recalling her state of mind toward the use of the sex toy on that particular day. He explained that, after correcting the chronology, A.E. was able to recall that it was the lingerie incident (count 4) which had occurred following her return from Disney, and that her explanation for the initial confusion combined with her detailed account of that incident served to overcome any concerns he might otherwise have about the reliability of that testimony. He noted that, by contrast with respect to the sex toy incident (count 3), A.E. was never asked to explain why she had initially connected that event to her trip to Disney, which occurred later, and that in the rest of her testimony she provided very little detail about her communications with the appellant concerning the sex toy. Given her acknowledgment that they had shopped together for similar sex toys in the past, and the absence of details about what was said in their communications about the sex toy, the trial judge had a reasonable doubt that the complainant was accurately recalling all of what she may have said to the appellant about willingness to try an anal sex toy on the day in question. The trial judge said:
To be clear, I am not suggesting that her prior attendances at the store with [the appellant] somehow suggest a proclivity on her part. Rather, it was in the context of that background, that the absence of details about what was said about the “surprise” on February, 1, 2018, leaves me with a reasonable doubt as to whether [the complainant] is reliably recalling her state of mind towards the use of that sex toy on that particular day. Her confusion about that event somehow being related to her trip to Disney adds to that doubt….
[22] The trial judge noted specifically that his reliability concerns about A.E.’s evidence on count 3 (as well as count 6) did not give rise to concerns about the credibility or reliability of her evidence relating to the other three events, two of which occurred even farther back in time. He stated:
My doubt about the reliability of her evidence is specific to the testimony she gave in relation to the February 2018 [count 3] and January 2019 [count 6] incidents. Despite my doubt in relation to those two incidents, having regard to the nature and circumstances of the other three incidents I fully accept [A.E.]’s evidence as reliable in relation to those three incidents. Each of those incidents was characterized by something sufficiently memorable that I am satisfied [A.E.] was able to reliably recall being anally penetrated by [the appellant] without her consent.
[23] From a review of his reasons, it is clear that the trial judge acquitted the appellant on count 3, not because he had a doubt about whether she was receptive to anal penetration in general, but because he could not rely on her evidence about her state of mind on that particular day. By contrast, he was satisfied that A.E. was reliably recalling what occurred during each of the other three incidents because (unlike count 3 where A.E. was mistaken about the timing), each of those incidents was characterized by something memorable.
[24] It does not follow from the appellant’s acquittal on count 3 for the reasons provided by the trial judge that he must have doubted whether A.E. would have consented to anal intercourse on other occasions. As he stated, his doubt was about her state of mind in connection with an alleged offence that occurred on that particular day. The fact of doubt concerning whether, for example, she may have communicated some equivocation in her prior communications with the appellant does not undermine the trial judge’s findings in relation to the other incidents. Accordingly, the appellant’s acquittal on count 3 was not logically inconsistent with his convictions on counts 1, 2 and 4 such that the guilty verdicts were unreasonable.
(3) The trial judge properly found that A.E.’s failure to call for assistance was irrelevant to his credibility analysis
[25] As his third ground of appeal the appellant asserted that the trial judge erred by saying that it was “entirely irrelevant” that A.E. did not call out for assistance during any of the incidents when family members might have been nearby. He submitted that, while “it is an error of law to draw an adverse inference from the mere fact that the complainant did not report the assault immediately” (emphasis added): Kruk, at para. 50, a trial judge should nevertheless consider whether, given the specific facts of a case, a complainant’s failure to summon help affected their credibility. The appellant argued that this would not be an impermissible reliance on stereotypical reasoning (as the Crown argued at trial), but that it was relevant to A.E.’s credibility that she did not call out during the incident that was alleged to have occurred in an open loft area close by the appellant’s father and stepmother.
[26] While the Crown conceded that there could be a context in which the failure of a complainant to call out for assistance is relevant to a trial judge’s credibility assessment, it could not have been relevant in this case. The Crown contended that, given the evidence before the trial judge, he properly found that A.E.’s failure to call out for help was irrelevant to his credibility assessment.
[27] We did not give effect to this ground of appeal. The trial judge properly rejected the argument of defence counsel that A.E. was less credible because she did not cry out loudly enough to alert those around her to the sexual assaults. In the circumstances of this case, it was “entirely irrelevant” to his credibility assessment. A.E. acknowledged on cross-examination that on more than one occasion she had not called out loudly enough to alert family members who were nearby. While she was not asked for an explanation, at one point in her evidence (in relation to count 4), she stated that she did not call out because she did not want her family knowing what was happening. There was nothing in the circumstances of the various incidents that could reasonably have supported the inference the appellant was urging on the trial judge: that A.E.’s evidence should be rejected because she failed to summon help. Accordingly, we rejected this ground of appeal.
D. Disposition
[28] For these reasons we dismissed the appeal.
“Janet Simmons J.A.”
“K. van Rensburg J.A.”
“Thorburn J.A.”
[1] His notice of appeal and factum raised a fourth issue that was abandoned at the hearing of the appeal.
[2] There was no cross-count similar fact application by the Crown in this case.
