Court of Appeal for Ontario

Date: 2025-08-20

Docket: COA-24-CR-0980

Judges: Zarnett, George and Gomery JJ.A.

Between

His Majesty the King Respondent

and

N.K. Appellant

Counsel

Jeff Marshman, for the appellant

Deepa Negandhi, for the respondent

Heard and Released

Heard and released orally: August 18, 2025

Appeal Information

On appeal from the convictions entered on November 22, 2023 by Justice Suhail A.Q. Akhtar of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] In closing submissions at trial, anticipating a defence argument that the complainant's evidence was fabricated to assist her mother, Crown counsel asked the jury to take into account that the complainant's mother had not testified to having witnessed any of the alleged incidents of sexual assault, sexual interference, or invitation to sexual touching. The trial Crown contended that this kind of testimony would be expected if there was a joint plan to fabricate.

[2] Defence counsel asked the trial judge to instruct the jury to ignore that submission because the complainant's mother had told the police that she witnessed an incident. However, the complainant did not testify to the incident referenced in the mother's police statement. Nor was the mother asked about that incident by the Crown or the defence at trial.

[3] The trial judge refused to instruct the jury to ignore the Crown's submission. The appellant argues that the trial judge erred, justifying a new trial.

[4] We do not accept the appellant's argument.

[5] We agree with the trial judge's conclusion that it was not improper for the Crown to have based its submission on the evidence actually led at trial. Nor do we accept that by not questioning the mother about her police statement, the Crown had implicitly represented to the defence that it would not respond to an allegation of fabrication on the basis that it did. It was open to defence counsel at trial to question the mother about the police statement and, as defence counsel candidly stated to the trial judge, not doing so was a tactical decision.

[6] The appeal is therefore dismissed.

Signatures

"B. Zarnett J.A."

"J. George J.A."

"S. Gomery J.A."

Publication Ban

[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.