Court File and Parties

Court of Appeal for Ontario Date: 2024-11-29 Docket: COA-23-CR-0604

Before: Zarnett, Coroza and Favreau JJ.A.

Between: His Majesty the King Respondent

And: Joseph Manuel Cordeiro Appellant

Counsel: Ian B. Kasper, for the appellant Hannah Freeman, for the respondent

Heard: November 25, 2024

On appeal from the conviction entered by Justice Kristin Muszynski of the Superior Court of Justice on November 3, 2022, with reasons reported at 2022 ONSC 6256.

Reasons for Decision

[1] The appellant was convicted of one count of sexual assault. He submits that the trial judge erred in her assessment of the complainant’s credibility.

[2] After hearing submissions from counsel for the appellant, the panel dismissed the appeal with reasons to follow. These are our reasons.

[3] At the time of the alleged offence, the complainant was an 18-year-old first-year university student. The appellant was 22 years old. The complainant and the appellant matched on Tinder and arranged to meet at her dorm. Before they met, the complainant sent a message to the appellant in which she said that she was “dtf” (down to fuck) if he was, but that she wanted to talk about it first.

[4] The complainant’s evidence at trial was that, after the appellant arrived at her dorm and they got on the elevator, he pushed her up against the wall, placed his hands on her throat, and began making out with her. Once they were in her dorm room, they both took their clothes off. They kissed for a short period of time, after which the appellant initiated intercourse. The complainant asked the appellant to put on a condom, which he did, but then took it off and proceeded to have unprotected vaginal intercourse with her. The appellant next forced his penis into her mouth, to which she objected. He then had vaginal intercourse with her a second time and again forced his penis in her mouth. The appellant also pulled the complainant’s hair, and slapped, choked and bit her.

[5] The appellant testified at trial. He did not deny having a sexual encounter with the complainant, but his account of what occurred was very different from the complainant’s version of events.

[6] In her reasons, the trial judge rejected the appellant’s evidence, finding that he was not credible because his testimony at trial was completely different from what he said had occurred in the statement he gave to the police and because parts of his evidence did not make sense. In contrast, the trial judge found that, overall, the complainant’s evidence was reliable and credible. She found the appellant guilty on the basis of the complainant’s evidence and on the basis of photographs taken after the sexual assault that showed injuries consistent with the complainant’s evidence.

[7] The appellant raises two issues on appeal.

[8] First, the appellant submits that the trial judge erred in viewing the complainant’s confusion over consent as enhancing her credibility. In making this argument, the appellant relies on the following passage in the trial judge’s reasons:

I accept that [the complainant] seemed confused at times as to when she withdrew consent. Consent is confusing. [The complainant]’s confusion enhances, not diminishes, her credibility in my view. What started as consensual sexual activity, at some point, became non-consensual. [The complainant] was clear that she did not consent to violence, she did not consent to having unprotected vaginal intercourse, and she did not consent to oral sex. [Emphasis added.]

[9] The appellant argues that the trial judge improperly generalized by stating that “consent is confusing”, and then erred by using that generalization as a basis for finding that the complainant’s expression of confusion made her more credible. In our view, this part of the trial judge’s reasons does not amount to a reversible error.

[10] At the outset, it is worth remembering that the role of this court is not to “finely parse the trial judge’s reasons in a search for error”. An error is not demonstrated merely by pointing to “ambiguous aspects of the trial decision”. An interpretation of reasons consistent with the presumption of correct application of the law must be preferred over one that suggests error: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 69, 79.

[11] The trial judge’s statement that “consent is confusing” and that the complainant’s confusion about consent enhanced her credibility must be understood in the context of her reasons as a whole and the complainant’s evidence. The complainant did in fact testify that she was confused at the beginning of the sexual encounter, including over whether she consented to the conduct in the elevator or the initial kissing in the dorm room. When examined in chief about what happened in the elevator, she said “I would say I was confused, and I didn’t know what was normal … um … I thought what was happening was normal at first. So, I guess you could say in the elevator it was a bit consensual, but mostly confusion”. During cross-examination, the appellant’s counsel suggested that all that took place in the elevator had been consensual. The complainant rejected that suggestion and stated that “[i]t was not consensual”. When confronted with her prior testimony in chief that what occurred in the elevator was “a bit consensual but mostly confusing”, she described the rapid progression of the various acts that took place in the elevator as confusing:

Yeah, it was confusing because I guess we got into the elevator, and he was immediately on me, you know, pushing me up against the wall, wrapping his hand around my throat, what have you not. And I didn't know how to react, honestly. So it was confusing.

[12] When asked whether the initial kissing in the dorm room was consensual, the complainant said that she “didn’t know what [she] was doing” but agreed that the appellant would have had no reason to see it as non-consensual. Regardless of her evidence regarding what happened in the elevator and immediately after the appellant and the complainant entered the dorm room, the complainant was firm in her testimony that she did not consent to the subsequent sexual conduct, including the vaginal intercourse without a condom, the oral sex and the choking, biting, slapping and hair pulling. On the basis of her evidence as a whole, the trial judge accepted that what started as a consensual sexual encounter became non-consensual and violent.

[13] Viewed in the context of the complainant’s evidence, it was not an error for the trial judge to state that the complainant’s confusion made her more credible. The complainant’s evidence was that her interaction with the complainant involved multiple acts that started in the elevator and then continued in her dorm room. In the paragraph with which the appellant takes issue, the trial judge first observed that the complainant seemed confused about when she withdrew consent. This was consistent with the complainant’s own reference to confusion about what was happening in the elevator and early on in the dorm room. The trial judge’s statement that “consent is confusing” must be viewed in that context; the trial judge was simply reflecting the complainant’s own confusion at the beginning of the encounter.

[14] When the trial judge next stated that the complainant’s confusion enhanced her credibility, in our view, the trial judge evidently meant that the complainant’s candour about her confusion gave more credibility to her evidence regarding what occurred during the whole interaction. In other words, the complainant’s candour about being confused at the beginning of the encounter made her evidence as a whole more credible because it made it less likely that she was lying about the non-consensual and violent aspects of the encounter, as the appellant contended at trial. It is not improper for a trial judge to view a witness’s candour as supporting that witness’s credibility. As this court held in R. v. E.A.P., 2022 ONCA 134, at para. 18, a “finding properly rooted in the evidence that there are strong indicia of candour and forthrightness in a witness’s testimony, are positive features of that witness’s evidence, capable of supporting a finding that the witness’s evidence is credible”; see also R. v. R.S.L., 2021 ONCA 576, at para. 29; and R. v. R.M., 2019 ONCA 419, at paras. 29-30. This line of reasoning was supported by the complainant’s evidence and the trial judge was entitled to follow it.

[15] The appellant’s second submission is that the trial judge approached the complainant’s evidence in a piecemeal fashion. In making this argument, the appellant focuses on various inconsistencies in the complainant’s evidence that he says the trial judge minimized or explained away without grappling with the frailties in the complainant’s evidence as a whole. It is evident from the trial judge’s reasons that she was aware of the inconsistencies in the complainant’s testimony and considered them in the context of the complainant’s evidence as a whole. She was entitled to view these inconsistencies as peripheral, which she did. After dealing with specific inconsistencies raised by defence counsel, the trial judge concluded:

Overall, I find [the complainant] to be both a credible and reliable witness and I accept her evidence that on September 29, 2019, what started as a consensual sexual encounter with Mr. Cordeiro, became non-consensual and violent.

[16] The record does not support the claim that the trial judge dealt with her evidence in a piecemeal fashion. Accordingly, we reject this second ground of appeal.

[17] In sum, this court owes significant deference to the trial judge’s findings of credibility: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 29. We see no error in principle or other error that would justify interfering with the appellant’s conviction.

[18] The appeal is dismissed.

“B. Zarnett J.A.” “S. Coroza J.A.” “L. Favreau J.A.”

[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.