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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(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

(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 Information

COURT OF APPEAL FOR ONTARIO

DATE: 20241011 DOCKET: COA-22-CR-0448

Tulloch C.J.O., Nordheimer and Madsen JJ.A.

BETWEEN

His Majesty the King Respondent

and

Asim Shabbir Appellant

Counsel: Myles Anevich and Arif Hussain, for the appellant Emily Marrocco, for the respondent

Heard: September 6, 2024

On appeal from the conviction entered on October 6, 2021, and the sentence imposed on December 20, 2022, by Justice Phillip Sutherland of the Superior Court of Justice, sitting with a jury.

Nordheimer J.A.:

Endorsement

[1] Asim Shabbir appeals his conviction for sexual assault reached after a trial with a jury. The appellant asserts that there were fundamental errors made in the instructions to the jury that render the verdict unsafe. He requests a new trial.

Background

[2] On the night of September 22-23, 2018, the complainant and her two cousins attended a Bollywood Jam at the Mod Club night club in downtown Toronto. There they met the appellant and his friend, both of whom were strangers to the cousins prior to this night. [1] The appellant and her cousins had drinks with the appellant and his friend in the VIP lounge, after which all three testified that they felt strange. Two of them thought that their drinks tasted odd.

[3] After having this drink, the complainant’s memory became hazy and “just not right.” The complainant believed that this drink put her into a trance, making her feel weak and loose. It also caused her to feel panic, worry, and anxiety. The complainant characterized the rest of the night as a panicky out-of-body experience where her memory would sometimes be better, and then she would go back to a comatose state. It was like a movie where she was watching herself, a whirlwind of emotions with peaks and valleys. At other times, she described her emotional state as a rollercoaster.

[4] At the end of the night, the appellant drove the complainant to her cousin’s house in Thornhill in his Chevrolet Suburban. Along the way, he stopped at a gas station. At this point, the complainant says that she got into the backseat of the vehicle because she was dizzy and faint. The next thing she knew, her pants were yanked off her body. The complainant believed that she was in an unconscious or near comatose state at this point. She said that she had no idea what was going on. She also said that the driver had vaginal intercourse with her, during which she faintly said “no”, but the driver persisted and held her arms down. The forced intercourse ended when the complainant rapidly exited the vehicle to vomit.

[5] The appellant and the complainant proceeded to the cousin’s house where a mattress had been placed in the basement for the complainant to sleep on. The complainant said that, once in the basement, the appellant again forced vaginal intercourse on her.

[6] The appellant gave evidence. His rendition of the events of the evening materially differed from the complainant’s. More specifically, the appellant said that, at the gas station, the complainant engaged in consensual oral sex with the appellant. He also said that at the cousin’s house, while in the basement, the complainant initiated sexual intercourse with him.

[7] The complainant’s memory of the events following the consumption of drinks in the VIP lounge was patchy on account of what she believed was drugging. She could not identify the appellant or his co-accused but did recall that the man who drove her home, whom the appellant admitted was him, had non-consensual vaginal intercourse with her first in the car, when he stopped at what she thought was a convenience store at a gas station, and then on a mattress once back at her cousin’s house as she was on the verge of passing out.

[8] It was conceded that the DNA of the appellant and his friend were found on anal, vaginal, and external genitalia swabs taken from the complainant. There was semen present, but the biologist could not be sure that both accused had contributed to the semen. The Crown’s theory was that both men had non-consensual intercourse with the complainant, who also lacked capacity to consent.

GROUNDS OF APPEAL

A. The drugging evidence

[9] At the hearing, this became the central ground of appeal. The appellant says that the trial judge failed to address, in his instructions to the jury, the evidence of the possible drugging of the complainant’s drink. The appellant submits that this evidence, left unaddressed by the trial judge’s instructions, could have provided a route for the jury to explain away inconsistencies in the complainant’s evidence that went directly to her credibility. The appellant says that a Villaroman instruction ought to have been given to the jury with respect to this evidence. [2]

[10] There is no doubt that there were some material inconsistencies in the complainant’s evidence. These included contradictions regarding her condition, in terms of her ability to walk and other conduct issues, between her evidence and the evidence of others, and between her evidence and a video taken from the club.

[11] There was expert evidence from a toxicologist. She did not find any remnants of drugs in urine samples taken from the complainant. However, the toxicologist explained that, given that some 15 hours had passed before the samples were taken, she would not expect to find remnants of a date rape drug such as GHB nor would she expect to find evidence of alcohol. The toxicologist also explained the effects that drugs, such as GHB, can have on an individual, including memory impairment, euphoria, and others.

[12] I begin my consideration of this ground of appeal by reference to certain principles that are to be applied to appellate review of jury instructions. As explained in R. v. Abdullahi, 2023 SCC 19, 428 C.C.C. (3d) 1, a functional approach is to be taken to that review. The principles underlying that functional approach include:

(a) The accused is entitled to a jury that is properly, not perfectly, instructed.

(b) The charge must be read as a whole.

(d) The charge must be considered not in isolation but in the context of the trial as a whole.

(e) The overriding question is whether the jury understood or was "properly equipped" with the law to apply to the evidence.

[13] The principle behind the decision in Villaroman relates to circumstantial evidence, the drawing of inferences from such evidence and the concern regarding how easily those inferences might be drawn. The concern is that, in engaging in the exercise of drawing inferences, the jury may jump to conclusions. The concern is aptly described in Villaroman by Cromwell J. at para. 26: “There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury may unconsciously "fill in the blanks" or bridge gaps in the evidence to support the inference that the Crown invites it to draw.”

[14] Cromwell J. suggested in Villaroman, that a jury instruction could address this concern. He said, at para. 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences.

[15] While I concede that it would have been preferable if the trial judge had given such an instruction to the jury in relation to the drugging evidence, I conclude that his failure to do so is not fatal in this case. I reach that conclusion for a number of reasons. First, the drugging evidence did not go “exclusively or largely” to an element of the offence. It was undoubtedly relevant to whether the complainant consented to the sexual contact; whether she had the capacity to consent; and whether the appellant could have an honest but mistaken belief in consent. However, the complainant’s supposition that her drink had been “spiked” was not the only evidence on this issue. There was a body of other evidence that the jury had to consider and against which they could test the complainant’s evidence about her condition. This included evidence from other witnesses and sources such as video surveillance. As noted in R. v. Hudson, 2021 ONCA 772, 158 O.R. (3d) 589, when considering the effect of circumstantial evidence “all the pieces have to be considered”.

[16] Second, neither defence counsel asked the trial judge to give such an instruction to the jury. There was a lengthy pre-charge conference in this case. Counsel revised three earlier drafts of the jury instructions. The drugging evidence was expressly discussed during the pre-charge conference. Yet, at no point did defence counsel make the submission, that is now made, that a Villaroman instruction should be given. The appellant submits that counsel and the trial judge all “dropped the ball” on this point. While that may be, it remains the fact that a failure to object is a factor to be considered. As Watt J.A. observed in R. v. Adan, 2019 ONCA 709, at para. 63:

An important factor in appellate review of the adequacy of jury instructions is the position of trial counsel, in particular, whether counsel objected to the charge on the issue raised on appeal. The failure to object is not decisive. A failure to object does not make whole what is otherwise an error. But a failure to object is a factor warranting consideration on appellate review.

[17] Third, the trial judge gave the jury the standard reasonable doubt instruction. The trial judge told the jury that they must be satisfied beyond a reasonable doubt of the appellant's guilt, and that a reasonable doubt might arise from the evidence or from a lack of evidence. The trial judge explained the concepts of direct and circumstantial evidence and how to draw inferences based on circumstantial evidence. All of this was sufficient, in the context of this case, to provide the type of caution to the jury regarding the concern that Villaroman was addressing.

[18] With these considerations in mind, I would not give effect to this ground of appeal.

B. Failures to properly instruct on assessing evidence

[19] This ground of appeal involves many of the same considerations as the Villaroman ground of appeal. In this case, the appellant says that the trial judge failed to instruct the jury on how to assess the evidence, including the assessment of prior inconsistencies in the complainant’s evidence.

[20] The trial judge gave the jury the standard instructions on how to assess evidence. He also gave the standard instruction on how the jury should address inconsistencies in the evidence of any witness.

[21] I accept that the jury could have been, and perhaps should have been, given instructions identifying specific evidence that related to credibility and reliability and also specific evidence of inconsistencies. Trial judges should do more than simply recite the standard instructions. Trial judges should provide some examples to the jury of how those instructions could apply to specific evidence in the case. In that way, the jury can better understand how general principles are to be applied to specific evidence.

[22] That said, the trial judge did mention some of the specific evidence, including the video and the timing of text messages, to the jury in the context of their assessment of the evidence. While admittedly those references could have been given in more specific detail, I cannot find that the failure to do so constitutes a fatal error.

[23] I would note two salient points that impact my conclusion on this ground. One is that, once again, defence counsel did not ask the trial judge to give further or better instructions relating to the assessment of evidence or with respect to the failings in the instructions to which the appellant now points.

[24] The other is that defence counsel, in their closing submissions, did refer to specific examples of the type of evidence that they said the jury should consider in assessing the evidence of the complainant, in particular. When it comes to issues respecting the recitation of evidence in jury instructions, any gaps in that recitation can be filled by counsel’s closing submissions: Abdullahi, at para. 64.

[25] In my view, counsel’s references to the specific examples of inconsistencies in the complainant’s evidence would have been adequate to alert the jury to the issues surrounding her evidence that the jury needed to consider in assessing the credibility and reliability of her evidence. I would not give effect to this ground of appeal.

C. The Laboucan error

[26] The appellant submits that the trial judge ought to have given an instruction to the jury to address the issue that was considered in R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397. That issue involves the potential for the jury to assume that an accused person will not tell the truth when they give evidence because of their significant interest in being found not guilty. This is often a serious concern because juries, who do not have the benefit of judicial experience, can easily succumb to the natural human tendency to assume that people will say anything to save their liberty and avoid the harsh consequences of conviction. See, e.g., E.F.B. Johnston, Esq., K.C. & L.A. Schneider, “Evidence of Accused Persons,” [1931] 4 D.L.R. 1, at pp. 3-5; Michael E. Webster, “The Accused’s ‘Great Interest’: Do I Dare To Testify?” (1994) 36 Crim. L.Q. 185, at pp. 185-186.

[27] This case provides a good example of how the issue can arise. In his instructions to the jury, the trial judge gave the standard instruction on assessing the evidence of witnesses including the following point: “Did the witness have any reason to give evidence that is more favourable to one side than to the other?”

[28] Because the appellant gave evidence, the trial judge also gave a W.D. instruction. [3] That instruction included the following: “When a person charged with an offence testifies, you assess his evidence in the same way and in accordance with the same principles that you assess the testimony of any other witness.”

[29] The trial judge then referred back to his earlier instructions on how to assess the evidence of witnesses.

[30] The decision in Laboucan addresses the concern that arises from the juxtaposition of these forms of instructions. If the jury only has the two instructions I have set out above, it might lead a jury to assume that an accused person’s self-interest in obtaining an acquittal will lead them not to tell the truth. That assumption must, of course, be rejected because, among other reasons, it offends the principle that accused persons are presumed to be innocent. In reality, despite the views of some, not all accused persons are, in fact, guilty.

[31] The decision in Laboucan discussed whether there should be an absolute prohibition on triers of fact considering this element in their assessment of an accused person’s evidence, and rejected it. However, they noted that it is a factor that will be “unhelpful” in most cases. Charron J. said, at para. 14: “In most cases, I would agree with counsel that this factor is simply unhelpful and, as a general rule, triers of fact would be well advised to avoid that path altogether, lest they unwittingly err by making the impermissible assumption that the accused will lie to secure an acquittal.”

[32] I would suggest, in line with that general rule, that trial judges ought to consider the impact of the standard instructions, that I have set out above, in this respect and, in appropriate cases, give a specific instruction to juries to alleviate the concern that arises. By way of example, the instruction referred to in R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, at para. 35, leave to appeal refused, [2016] S.C.C.A. No. 299, would be effective: “You must not presume that an accused who testifies will lie out of self-interest in order to avoid conviction”.

[33] Such an instruction might fit comfortably in the W.D. instruction directly after mentioning that an accused person’s evidence is to be assessed in the same way as all other witnesses. Providing this instruction is preferable to the alternative of no instruction relating to the witnesses’ interest in the outcome of the case, which may not always prevent juries from following the natural human tendency to assume that accused people will lie out of self-preservation. See R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 118.

[34] Whether such an instruction ought to be given will fall to be determined on the facts of each individual case. Trial judges should give this instruction if the accused’s motive to lie is raised at trial, whether by the Crown, co-accused, or the trial judge, and no exception to Laboucan’s general rule applies. See R. v. D.B., 2024 ONCA 546, at paras. 40-43; Sheriffe, at paras. 32-35; R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 118. In other cases, it is within the discretion of trial judges to decide whether or not to give that instruction. Trial judges should exercise that discretion by considering whether the evidence and issues raised at trial create a real risk that the jury would follow the natural human tendency to assume that accused people will lie out of self-preservation.

[35] The failure of the trial judge to give such an instruction in this case is not a fatal error nor does the appellant submit it is. No one raised the appellant’s motive to lie at trial, he does not point to any evidence or issues that created a real risk that the jury would assume that he was lying to avoid conviction, and his counsel did not object to the trial judge’s W.D. instruction. Consequently, I would not give effect to this ground of appeal.

D. Failure to deal with the accused separately

[36] As earlier set out, there were two accused in this case – the appellant and his friend. The appellant complains that the trial judge failed to ensure that the jury dealt with each accused separately. Put another way, the appellant says that the trial judge conflated the positions of the two accused.

[37] I do not accept this criticism. The trial judge, on two occasions, expressly told the jury that each of the accused was a separate person who was entitled to separate consideration in relation to each charge. He further instructed the jury that each of the accused was entitled to have the case against him decided on the basis of his own conduct and the evidence that applied to him.

[38] Nothing more was required of the trial judge in this regard. I would note, on this point, that defence counsel submitted a joint defence position for purposes of inclusion in the charge. The trial judge questioned counsel about this and both counsel confirmed that is how they wished the position of the defence to be presented to the jury. It does not now lie with the appellant to complain about the trial judge acceding to the request of defence counsel on this point.

[39] Lastly on this point, when the jury asked a question that indirectly touched on the position of the accused, the trial judge made it clear to the jury the particular differences that applied between the appellant and his co-accused, including that the appellant had admitted sexual contact with the complainant whereas his co-accused had not.

CONCLUSION

[40] I would dismiss the appeal. While the appellant sought leave to appeal his sentence, he did not pursue that appeal and it is dismissed as abandoned.

Footnotes

[1] The friend was also charged with sexual assault. He was tried together with the appellant. He was also convicted.

[2] R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[3] R. v. W. (D.) [D.W.], [1991] 1 S.C.R. 742.

Released: October 11, 2024 “M.T.” “I.V.B. Nordheimer J.A.” “I agree. M. Tulloch C.J.O.” “I agree. L. Madsen J.A.”

R. v. Shabbir, 2024 ONCA 750

Case Summary