Court of Appeal for Ontario

Date: 2025-06-23
Docket: COA-24-CR-0585
Coram: Grant Huscroft, Thorburn, P.J. Monahan

Between:
His Majesty the King (Respondent)
and
Harvin Fraser (Appellant)

Appearances:
Mark C. Halfyard, for the appellant
Maria Anghelidis, for the respondent

Heard: 2025-06-20

On appeal from the conviction entered on June 30, 2023 by Justice Todd Ducharme of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted on one count of sexual assault. He raises a single ground of appeal. He says that the trial judge materially misapprehended the evidence about whether the complainant’s sexual interaction with the appellant included oral sex as well as sexual intercourse.

[2] We do not agree.

[3] The complainant testified that the appellant pushed her down on the stairs in her home, put his left hand around her throat, pulled down her pants with his right hand, and put his penis in her vagina. The complainant called the police and was taken to the hospital for examination by a sexual assault nurse. The nurse checked “yes” to the question: “Was there penetration or attempted penetration of the patient’s mouth by the assailant’s penis (fellatio)?” However, the complainant testified that no oral sex had occurred.

[4] The trial judge resolved this apparent inconsistency on the basis that the complainant either misunderstood what she was asked or misspoke in answering the nurse’s question. He found that the complainant was upset and in shock during her interview with the nurse and said that this made misunderstanding or misspeaking possible. Thus, it did not undermine the complainant’s credibility. Nor did the trial judge have a significant concern about her reliability, as he found, on the basis of the evidence as a whole, that her evidence was credible and reliable.

[5] The appellant argues that it was extremely unlikely that the complainant misspoke or was mistaken. She testified that she did not recall saying that oral sex had occurred and did not know why “yes” was checked off but did not testify that she was mistaken or that she misspoke.

[6] This submission invites the court to remake the trial judge’s credibility and reliability findings. That is not our function on appeal. It was for the trial judge to make credibility and reliability findings. We are satisfied that he properly considered the evidence as a whole and was entitled to make the findings he did. Those findings are entitled to deference in this court.

[7] Accordingly, the appeal is dismissed.

“Grant Huscroft J.A.”
“Thorburn J.A.”
“P.J. Monahan J.A.”