Court File and Parties

Court of Appeal for Ontario Date: 2024-11-15 Docket: COA-22-CR-0279

Before: Paciocco, Favreau and Wilson JJ.A.

Between: His Majesty the King Respondent

And: S. M. Appellant

Counsel: Myles Anevich, for the appellant Adrianna Mills, for the respondent

Heard: November 14, 2024

On appeal from the conviction entered on August 25, 2022, by Justice Ralph E.W. Carr of the Ontario Court of Justice.

Reasons for Decision

[1] Mr. M. and the complainant were married. Almost immediately after she sponsored his entry into Canada, their marriage began to fail. She alleged that on two occasions Mr. M. entered her bed without permission and forced unwanted sexual intercourse on her. Based on these allegations Mr. M. was charged with a single, composite count of sexual assault.

[2] Mr. M. argued at his trial that the complainant’s evidence about the alleged assaults could not reasonably be believed. He made two key submissions in support of that position. First, he argued that she had a financial motive to fabricate the allegations so that Mr. M. would be removed from the country, thereby alleviating her from her sponsorship obligations. He argued that the fact that the complainant was upset that Mr. M.’s sister was giving him advice about his rights supports this claim. Second, Mr. M. argued that the complainant’s allegations were implausible given the unlikelihood that the alleged assaults would have occurred so proximate to the bedrooms where his son and their son were sleeping. After having had the benefit of observing the complainant testify, the trial judge believed her testimony beyond a reasonable doubt and convicted Mr. M.

[3] At the end of oral argument, we dismissed Mr. M.’s appeal for this conviction for reasons to follow. These are our reasons.

[4] We were not persuaded that the trial judge materially misapprehended the complainant’s evidence when rejecting Mr. M.’s submission that the complainant was upset that Mr. M.’s sister was advising him of his rights. The complainant explicitly denied this in her testimony, and the trial judge was entitled to believe her. Although aspects of the complainant’s testimony on this subject can be interpreted as inconsistent, those alleged inconsistencies are not as unequivocal as Mr. M. contends, given that the questioning was at times unclear, and the answers she provided were not always pursued. Moreover, we were not persuaded that any such inconsistencies are so material to the basis for the conviction that a failure by the trial judge to appreciate them fully would give rise to a miscarriage of justice. We therefore rejected this first ground of appeal.

[5] We also do not accept Mr. M.’s second ground of appeal, namely, that the trial judge failed to give proper effect to the implausibility argument. We acknowledge that the first reason the trial judge articulated for rejecting this submission would apply only to the second alleged assault, and not the first, but the trial judge gave additional reasons for rejecting the implausibility of both assaults.

[6] The appeal is accordingly dismissed.

Released: November 15, 2024

“David M. Paciocco J.A.” “L. Favreau J.A.” “D.A. Wilson J.A.”

Publication Ban Note

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.