Court of Appeal for Ontario

Date: 2025-03-17
Docket: COA-24-CR-0092
Coram: B.W. Miller, David M. Paciocco, J. Copeland JJ.A.

Between:
His Majesty the King (Respondent)
and
Z.V. (Appellant)

Counsel:
Chris Rudnicki, for the appellant
Akshay Aurora, for the respondent

Heard: 2025-02-19

On appeal from the convictions entered on June 16, 2023 and the sentence imposed on February 6, 2024 by Justice Russell M. Raikes of the Superior Court of Justice.

Reasons for Decision

Introduction

[1] The appellant appeals from conviction on one count of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, and one count of choking with intent to commit an indictable offence, contrary to s. 246(a) of the Criminal Code.

[2] The appellant raised two grounds of appeal, one relating to the trial judge’s treatment of the complainant’s evidence and the other relating to the trial judge’s treatment of the appellant’s evidence:

1. The trial judge misapprehended the complainant’s evidence in relation to whether she consented to oral sex; and
2. The trial judge erred by using his finding that the appellant fabricated aspects of his evidence as circumstantial evidence of guilt, in the absence of independent evidence of fabrication.

[3] After hearing submissions, we dismissed the appeal with reasons to follow. These are our reasons.

(1) The trial judge did not misapprehend the complainant’s evidence regarding consent in relation to oral sex

[4] The appellant argued that the trial judge misapprehended the complainant’s evidence in relation to whether she consented to oral sex. The appellant contended that the complainant did not testify that she did not consent to oral sex, but rather testified about “reluctant” or “convinced” consent, which was nevertheless consent.

[5] We are not persuaded that the trial judge misapprehended the complainant’s evidence on the issue of consent in relation to the oral sex. He was entitled to find based on her testimony that she did not consent.

[6] The test for misapprehension of evidence sufficient to warrant appellate intervention is stringent. The misapprehension must be of substance rather than detail; it must be material, rather than peripheral, in the reasoning of the trial judge. In addition, it must not merely be part of the narrative of the judgement, but an essential part of the reasoning process resulting in conviction: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

[7] The context for the evidence that gives rise to this ground of appeal is as follows. The appellant and the complainant were in what the trial judge described as “a turbulent, toxic romantic relationship” at the time of the offences. The complainant alleged that the appellant sexually assaulted her in his car. The sexual contact included oral sex, vaginal sex, and attempted anal sex. The Crown contended at trial that all three sex acts were non-consensual and constituted sexual assaults. The complainant’s evidence in relation to whether she consented to oral sex was the focus of the appellant’s misapprehension of evidence argument.

[8] In examination-in-chief, the complainant testified that she and the appellant were in the front seats of the car, which was parked at a conservation area. The appellant wanted her to perform oral sex on him. She testified that the appellant: “kinda just grabbed my head and put me there… Like the back of my head, my hair.” She could not remember if the appellant used one hand or two to bring her head to his penis. She then testified: “I gave him oral sex and then, because I didn’t really want to, I stopped and I just sat back in the chair for a little bit and to try and avoid having sex with him, I asked if we could just cuddle.”

[9] In Browne v. Dunn questioning in cross-examination, the complainant denied the suggestion that the oral and vaginal sex were consensual. These questions were phrased in a way that did not distinguish between the oral sex and the vaginal sex. The suggestion was put to the complainant that she consented to both, which she disagreed with.

[10] At the end of cross-examination, the trial judge asked, for clarification, whether the oral sex was consensual. The complainant responded: “I didn’t say yes or no. Like I had mentioned it – I was just kind of was convinced to, but like I said too, it didn’t last very long just ‘cause I just didn’t want to.”

[11] The trial judge then offered counsel an opportunity to ask any questions arising from his question. Counsel for the appellant asked a few more questions. In that exchange, the complainant adopted a portion of her evidence from the preliminary inquiry where she said, when asked whether she was taking any issue with the oral sex, “Well, the oral sex wasn’t when you kind of grab my head and force me there, that wasn’t exactly wanted either, but the vaginal sex I didn’t fight, no” (emphasis added). Counsel for the appellant then suggested to the complainant that her real concern was the attempted anal sex allegation. The complainant responded: “Yeah, that’s what I’m here for absolutely but doesn’t – I think explaining like the kind of convinced consent kind of gives, kind of sets the tone, I guess.”

[12] In his oral reasons for judgment, the trial judge fairly summarized the complainant’s evidence in relation to the oral sex as follows:

According to [the complainant], the defendant grabbed her head and pulled it down by the hair to his penis. There was no discussion about oral sex beforehand. His penis was in her mouth for oral intercourse for a minute or two, she testified that because she didn’t want to, she stopped, sat back in her seat a bit and asked if they could cuddle.

[13] The trial judge then considered the credibility and reliability of the evidence of the appellant and the complainant. He gave detailed reasons for rejecting the appellant’s evidence and finding the complainant’s account to be credible, despite some inconsistencies. He then made the findings of fact in relation to the alleged sexual assault. We focus on the findings related to whether the complainant consented to the oral sex. The trial judge found that the appellant “grabbed [the complainant’s] head by the hair and forced her to perform oral sex while they were in the front seat of his car.” He found that the complainant did not consent to engage in oral sex.

[14] The trial judge’s finding that the complainant did not consent to performing oral sex on the appellant was open to him on the record. To be sure, there were ambiguities in some of what the complainant said. In isolation, her comments that she “didn’t really want to”, and that she was “just kind of convinced” arguably leave open the possibility that she was persuaded to agree to perform oral sex even though it was not her preference. However, this ambiguity disappears when her testimony is considered in its entirety. She testified that there was no conversation about oral sex but that he “grabbed [her] head and put [her] there”. It was in this context that she adopted the preliminary inquiry testimony in which she responded to a line of questioning that suggested her concerns were with the attempted anal sex rather than the oral sex by saying, “when you kind of grab my head and force me there, that wasn’t exactly wanted either.” When the trial judge found that the appellant “grabbed [the complainant’s] head by the hair and forced her to perform oral sex while they were in the front seat of his car” he was effectively repeating her own description of what had transpired. We are not persuaded that the trial judge misapprehended the complainant’s evidence.

[15] We would add, in the circumstances of this case, even if the trial judge had misapprehended the evidence in relation to consent to the act of oral sex, it was not material and the sexual assault conviction would still stand.

[16] The sexual assault alleged at trial was based on several sexual acts – oral, vaginal, and attempted anal sex. The trial judge found both oral sex and attempted anal penetration to have been non-consensual and to satisfy the elements of sexual assault. He had a reasonable doubt on proof of non-consent regarding the vaginal sex. On appeal, the appellant did not challenge the trial judge’s finding in relation to the non-consensual attempted anal penetration. That finding alone is sufficient to ground the appellant’s conviction for sexual assault.

(2) The trial judge did not err in his use of his finding that the appellant fabricated aspects of his evidence

[17] The appellant argued that the trial judge erred by using a finding that the appellant fabricated aspects of his evidence as circumstantial evidence of the appellant’s guilt, in the absence of independent evidence of fabrication. In support of his position, the appellant relies on this court’s decisions in cases such as R. v. Iqbal, 2021 ONCA 416, 406 C.C.C. (3d) 208, at paras. 52-83, and R. v. U.K., 2023 ONCA 587, at paras. 71-72. We note that this ground was formulated slightly differently in oral submissions than in the appellant’s factum. We address the argument as formulated in oral submissions.

[18] We reject this ground of appeal.

[19] The principles arising from cases such as Iqbal and U.K. are meant to protect primarily against two prohibited lines of reasoning. First, a trier of fact must not jump directly from a finding of fabrication to a conclusion of guilt. Second, a trier of fact may not use a finding of fabrication as circumstantial evidence of guilt unless there is independent evidence of fabrication. Another way of putting the second prohibited inference is that a finding of fabrication cannot be used as positive circumstantial evidence of guilt – a makeweight – unless there is independent evidence of fabrication. The danger inherent in each of these prohibited inferences is that they tend to reverse the burden of proof: Iqbal, at para. 53; U.K., at paras. 73, 75-76.

[20] The trial judge did not engage in either of these prohibited lines of reasoning. The reasons for judgment show that the trial judge did not reason from a finding of fabrication directly to guilt; nor did he use the finding of fabrication as circumstantial evidence of guilt or as a makeweight.

[21] We outline briefly the evidence on which the trial judge based his finding that the appellant fabricated aspects of his evidence as context for our analysis of how the trial judge’s reasons show that he did not engage in either of the prohibited lines of reasoning.

[22] The appellant testified at trial. He said that the sexual activity was consensual and that the complainant initiated the oral sex. He denied that he attempted to anally penetrate her. Crown counsel cross-examined the appellant on statements that he had made to Detective Constable Jamieson in a police interview after the appellant’s arrest that the Crown suggested were inconsistent with the appellant’s trial evidence. Trial counsel for the appellant had conceded the voluntariness of the appellant’s videotaped statement to Detective Jamieson. In response to the cross-examination about portions of the statement that were inconsistent with his trial evidence, the appellant said that Detective Jamieson coached, tricked, and coerced him to give the answers he gave during his recorded police interview. The appellant said that Detective Jamieson had two or three conversations with him before the recorded statement and during those unrecorded conversations, coached the appellant about what to say during the recorded statement.

[23] The Crown was given leave to call Detective Jamieson in reply to respond to the appellant’s allegations. Detective Jamieson denied speaking to the appellant prior to the videotaped interview other than to inform him of the charges. Detective Jamieson denied coaching the appellant in any manner.

[24] The trial judge found that the appellant’s allegations of trickery and coercion by Detective Jamieson were fabricated in order to explain statements put to the appellant in cross-examination that were damaging to him:

I find Constable Jamieson’s evidence to be credible and reliable and I accept it. I find that he did not coach the defendant. He did not meet with the defendant outside of the interview room to discuss the allegations and what he should say. That evidence by the defendant is a complete fabrication aimed at avoiding damaging contradictions between what he told police and what he testified at trial.

[25] Three things emerge from a review of the trial judge’s reasons. First, in considering the issue of the allegations the appellant had made about Detective Jamieson’s conduct before the videotaped interview, the trial judge was addressing a live issue raised by the appellant’s evidence in cross-examination that was directly relevant to the appellant’s credibility.

[26] Second, the trial judge made the finding of fabrication and relied on it in the portion of his reasons where he was addressing the first two branches of the analysis from R. v. W.(D.), [1991] 1 S.C.R. 742. This context, as well as the language used by the trial judge, make clear that he was using the fabrication finding to explain why he did not believe the appellant’s evidence and why it did not leave him with a reasonable doubt, under the first two branches of W.(D). This was a use for credibility only and did not engage either of the prohibited inferences. We note as well that the trial judge provided numerous other reasons for rejecting the appellant’s evidence – primarily rooted in inconsistencies in his evidence.

[27] Third, it is clear from the analysis that follows the fabrication finding that the trial judge did not either jump from the finding of fabrication to guilt or use the finding of fabrication as a makeweight. After the trial judge considered the first two branches of the W.(D). analysis (where he had made reference to the fabrication finding), the trial judge proceeded to consider the third branch of W.(D.) – whether the evidence he did believe satisfied him beyond a reasonable doubt of the appellant’s guilt.

[28] This transition is very clear in the reasons. After stating that he had “no faith in the accuracy or truth” of the appellant’s evidence and that it did not raise a reasonable doubt, the trial judge stated:

I must now consider whether there is other credible and reliable evidence that I accept that proves the constituent elements of the offences beyond a reasonable doubt.

[29] In his consideration of the third branch of W.(D.), the trial judge did not make reference to the finding of fabrication or treat it as circumstantial evidence of guilt. Rather, he focused on an assessment of the credibility and reliability of the complainant’s evidence. The fact that the trial judge went on to consider the third branch of W.(D.), as well as the fact that he did not rely on the fabrication finding in his analysis under the third branch, makes clear that he did not jump from the finding of fabrication to guilt.

[30] In our view, the use made by the trial judge of the fabrication finding in this case is the same as the use of the concept of “concoction” that this court found was not an error in R. v. Harris, 2019 ONCA 193, para. 12. As in Harris, the trial judge in this case used the term “fabrication” in assessing the appellant’s credibility. He did not use his rejection of the appellant’s evidence as positive evidence of guilt.

Disposition

[31] The conviction appeal is dismissed. The sentence appeal is dismissed as abandoned.

“B.W. Miller J.A.”
“David M. Paciocco J.A.”
“J. Copeland J.A.”

Additional Notes

[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.

[2] The appellant’s notice of appeal also sought leave to appeal sentence. However, he made no submissions on the sentence appeal either in his factum or orally. In the circumstances we dismiss the sentence appeal as abandoned.