R. v. Karatekin, 2019 ONSC 294

COURT FILE NO.: CR-18-1000028-00AP DATE: 20190118

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – FURKAN KARATEKIN Defendant/Appellant

Counsel: Daniel Guttman, for the Respondent Brian Greenspan and Naomi Lutes, for the Appellant

HEARD: October 19, 2018

MOLLOY J.:

REASONS FOR DECISION

A. INTRODUCTION

1In the early morning hours of April 2, 2016, two groups of young people, previously unknown to each other, wound up at the Emergency Department of the Toronto Western Hospital after an evening of partying in Toronto’s nightclub district. Each group consisted of individuals who had sustained relatively minor injuries at separate nightclubs and a couple of friends who had accompanied them to the hospital. All of them had been drinking, to various degrees of inebriation. While waiting for treatment, the two groups of young people chatted in a friendly way. They discussed being hungry. There was a McDonald’s nearby. A young woman from one group (“AM”) and a young man from the other group (Furkan Karatekin) headed off to McDonald’s together to buy food for the group. Both of them were 21 years old at the time. Along the way, AM and Furkan Karatekin engaged in consensual kissing. She says that he went substantially further than kissing and engaged in sexual conduct to which she did not consent. He says there was only consensual kissing and some touching over her clothes incidental to the kissing. Nobody else was there.

2Mr. Karatekin was charged with sexual assault. He pleaded not guilty. His trial proceeded in the Ontario Court of Justice on August 28-30, 2017 before Justice B. Brown. For oral reasons delivered on November 9, 2017, Brown J. found Mr. Karatekin guilty of sexually assaulting AM. She imposed a sentence of nine months’ imprisonment.

3The trial judge believed AM’s testimony, and found that her testimony was corroborated by physical injuries to her lip and cheek, as well as by observations made by her friends immediately following the incident. Mr. Karatekin testified in his own defence, telling a story quite different from that of AM. The trial judge did not believe him, citing several reasons for finding that he was not a credible witness.

4Mr. Karatekin appeals to this court from his conviction and sentence. For the detailed reasons that follow, I am of the view that the trial judge’s findings on credibility are fundamentally flawed. The conviction is therefore unsafe and is set aside. Given that conclusion, it is not necessary to deal with the sentence appeal.

B. THE REASONS OF THE TRIAL JUDGE

5The reasons of the trial judge are detailed, covering 31 pages of transcript. As is often the case in sexual assault trials, this was a classic “he said/she said” situation, and was recognized as such by the trial judge. Everything turned on her findings of credibility.

6At pages 2-18 of the transcript, the trial judge reviewed the evidence at trial, including the testimony of AM, AM’s friends (N. and H.), and Mr. Karatekin. Her analysis of the evidence begins with a statement of the applicable legal principles, in which she cited and correctly summarized the well-known cases of R. v. W.D., [1991] 1 S.C.R. 742 and R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.). She recognized that the burden of proof rests throughout on the Crown and that it would be “wrong to find that simply because the evidence of the complainant is believable, and believed, that a defendant’s evidence must be rejected.” Regardless of any belief in the complainant’s evidence, the trial judge accepted that she must still consider whether the defence evidence raised a reasonable doubt in her mind. While noting that corroboration of a complainant’s evidence is not required, the trial judge observed that as a practical matter it is often important in cases of this nature. The appellant takes no issue with these general principles stated by the trial judge.

7In determining the credibility of the complainant, the trial judge took into account evidence she found to be corroborative as follows:

(a) AM testified that Mr. Karatekin was rough with her; that he bit the inside of her lip and her cheek. Photographs taken by the police less than 24 hours later show red marks on the inside of her upper lip and bruising near her jawline.

(b) AM testified that for a portion of the time while they were kissing, Mr. Karatekin was sitting on a concrete ledge and she was standing in front of him. She said that he locked his legs around her, holding her up against the wall in an uncomfortable position, such that her leg was scraped even though she was wearing jeans. The police photographs show bruising and redness to AM’s knee cap.

(c) Both N. and H. testified that immediately after this incident, AM was crying. H. testified to seeing injuries on AM. N. testified that AM’s hair and clothing were disheveled. The trial judge accepted these aspects of their evidence and found this provided circumstantial support consistent with AM’s evidence that she had been assaulted just moments before.

8The trial judge also noted that AM candidly admitted some things that were against her own interest, which she found enhanced the credibility of other aspects of her evidence. For example, AM admitted she had consumed a beer and two drinks and that she was feeling tipsy or dizzy. She also admitted flirting with Mr. Karatekin in the hospital waiting room, and telling him that she found him attractive. The trial judge also found that AM did not exaggerate or overstate the nature of the offending conduct by Mr. Karatekin or the extent of the assault. Again, she found this enhanced AM’s credibility. The trial judge recognized that in her prior statement to police AM had failed to mention anything about Mr. Karatekin putting his legs around her to hold her in place by the concrete wall. However, the trial judge found this earlier failure to disclose information to be “a relatively inconsequential inconsistency” and to be “more in the nature of human imperfection.”

9The trial judge then went on to consider the testimony of Mr. Karatekin, pointing to several aspects of his testimony that she found to be “unworthy of belief:”

(a) Mr. Karatekin testified that after he and AM had been kissing for a period of time, she pushed him away, told him she did not want to continue, and told him she was a lesbian. He said that after this rejection, he asked AM if she would give him her cellphone number. She gave him a number, which he then called from his phone. The complainant’s phone did not ring, so he asked her again. She then gave him her actual number, the previous one having been false. He said that immediately calling a number he has been given is a common practice for him to ensure that he has entered the new number correctly. The trial judge found that it made no sense that Mr. Karatekin would ask for AM’s number after she told him she was a lesbian and not interested in him and also that his explanation about making the call to confirm the number “made absolutely no sense” and was “more consistent with suspecting she had given him the wrong number.”

(b) The complainant testified that Mr. Karatekin had pushed her onto the ground by some shrubs and assaulted her. Her wig fell off, and he allowed her to put it back on. Mr. Karatekin testified that he had previously injured his ankle at the bar and lost his balance when kissing AM, with the result that she almost fell into the shrubs and he grabbed her to break her fall, during the course of which her wig fell off. The trial judge disbelieved his evidence about the injury to his ankle. She held that video footage from the hospital showed that Mr. Karatekin was walking without any difficulty, without limping, and without favouring the ankle. She also found it odd that although he testified that he missed soccer for months of the summer as a result of the ankle injury, by the time of trial he could not remember which ankle had been injured. She found that “misleading the court on the issue of the ankle injury, or a problem with balance, [was] a significant part of [Mr. Karatekin’s] version of events” and that she disbelieved his evidence in that regard.

(c) Mr. Karatekin was contacted by the police a day and a half after the allegations. He was told he was being investigated for sexual assault. He voluntarily turned himself in and attended, without counsel, at the police station where he gave a video-taped statement. The trial judge found that he was inaccurate and misleading in his statement to the police. She stated that he admitted in his testimony that he had not told the truth to the police when he said that he had only kissed the complainant once. She noted that over the course of that interview, Mr. Karatekin “added more events that had taken place, such as the complainant’s wig coming off, . . . almost falling down, and the complainant telling him she was a lesbian and to stop kissing.” Further, she observed that when the police “continuously asked what type of touching there was, he stated it was only kissing, and it was not until page 64 of the statement that he mentioned, for the first time, that he touched her butt cheeks.” The trial judge rejected Mr. Karatekin’s explanation for this delayed disclosure of details and used these statements she found to be misleading as a factor undermining credibility.

(d) The trial judge held that Mr. Karatekin had himself admitted that AM had sustained visible injuries during their encounter. She found this evidence to be inconsistent with his testimony that he had not assaulted the complainant.

(e) The trial judge also found that Mr. Karatekin was evasive in his answers to questions about his giving a thumbs up signal to his friends in the hospital as he was leaving with AM to go to McDonald’s.

10After reviewing these difficulties with Mr. Karatekin’s evidence, the trial judge concluded by ruling:

Overall, the court found the testimony of Mr. Karatekin to not be believable. The court also considers his testimony, in light of the other evidence in this trial, including the photographs and evidence of the complainant’s injuries and the complainant’s evidence. The court does not have any reasonable doubt as to his guilt on the charge of sexual assault based on all of the evidence in this trial.

The court has accepted the version of events given by the complainant as a credible and reliable account of what happened during the night of April 2nd just outside the hospital. The court does not have a reasonable doubt, and finds the Crown has met its burden of proof.

[Emphasis added.]

C. ISSUES RAISED

11The appellant submits that although the trial judge correctly stated the law, she failed to properly apply the test established in W.D., thereby essentially engaging in a credibility contest in which she believed the complainant and then went on to discount the appellant’s version of the events in a manner that was conclusion driven.

12The appellant also takes issue with each of the grounds upon which the trial judge found the appellant’s evidence to be lacking in credibility. The appellant argues that the trial judge misapprehended Mr. Karatekin’s evidence with respect to his confirmation that AM had observable injuries immediately following the alleged assault, and with respect to the extent of his ankle injury. With respect to the trial judge’s conclusion that Mr. Karatekin lied to or misled the police, the appellant argues that this was an improper use of the police statement in breach of Mr. Karatekin’s right to remain silent under s. 7 of the [Canadian Charter of Rights and Freedoms], and that there was no inconsistency between Mr. Karatekin’s statement and his evidence at trial. In addition, the appellant asserts that the trial judge misapprehended Mr. Karatekin’s explanation for the delay in providing some details to the police and unfairly treated this as a factor undermining his credibility. Finally, the appellant submits that the trial judge applied an unduly strict standard in determining the credibility of Mr. Karatekin’s evidence, while treating any frailties in the Crown’s evidence in a much more forgiving manner. In this regard, the appellant points to: the trial judge’s acceptance that the complainant did not tell the police about Mr. Karatekin holding her against the cement ledge with his legs around her locking her in place; the trial judge’s reliance on any aspects of the testimony of N. and H. that corroborated the testimony of AM, notwithstanding the unreliability of other parts of their evidence; and the trial judge’s treatment of Mr. Karatekin’s evidence about calling the number AM gave him to check its accuracy.

D. THE TEST TO BE APPLIED ON APPEAL

13The trial judge is required to be correct on issues of law. However, for findings of fact, or findings of mixed fact and law, an appellate court is permitted to intervene only if the trial judge has made a “palpable and overriding error.” Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. Gagnon, 2006 SCC 17, [2006] 1 SCR 621 at para. 10.

14Findings of credibility are particularly entitled to deference. The trial judge has a unique advantage in being able to see and hear the witnesses who testified. The reasons for believing or disbelieving a witness are notoriously difficult to articulate. The trial judge’s credibility findings are not to be subjected to microscopic scrutiny at the appeal level. Absent a palpable and overriding error, there is no basis to interfere with the trial judge’s assessment of credibility. R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.) at para. 46; C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paras. 72-73; R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 at paras. 48-51, 56-57.

15A trial judge may be found to have misapprehended the evidence if she failed to take into account relevant evidence on a material issue, made a mistake as to the substance of a piece of evidence, or failed to give proper effect to the evidence. However, such an error is not reversible on appeal unless it was material to the reasoning of the trial judge, rather than relating to some peripheral point. A mere inaccuracy is not enough. The error must have played an essential part in the reasoning process that brought the trial judge to her conclusion of guilt. R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291 at para. 85; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5; R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.).

16A trial judge is required to be even-handed as between the Crown and defence evidence. Applying a stricter standard to the assessment of the evidence of an accused is a reversible error. However, this is a difficult test to meet. As noted by Pardu J.A. in R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111 at paras. 18-19:

This court has repeatedly stated that it is an error of law for a trial judge to apply a higher or stricter level of scrutiny to the evidence of the defence than to the evidence of the Crown: R. v. Owen (2001), 150 O.A.C. 378, at para. 3; R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 62; R. v. Phan, 2013 ONCA 787, 313 O.A.C. 352 at para. 30. However, as noted by Laskin J.A. in R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39:

The "different standards of scrutiny" argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge's credibility determinations.

For an appellant to successfully advance this ground of appeal, she must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied and something sufficiently significant to displace the deference due to a trial judge’s credibility assessments: R. v. Howe (2005), 192 C.C.C. (3d) 480 at para. 59 (Ont. C.A.); R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 98.

17Similar observations have been made in many other cases, including by Doherty J.A. in R. v. Howe as follows (at para. 59):

This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.

E. ANALYSIS

(1) The Application of W.D.

18The appellant acknowledges that the trial judge correctly stated the law on the principles to be applied in a case turning on conflicting evidence between the complainant and the accused. Immediately after stating those principles, the trial judge turned to her analysis of the evidence, her conclusions as to credibility, and her ultimate finding of guilt. She must be presumed not to have forgotten the principles she was required to apply, mere moments after she stated what they were.

19The trial judge did not follow the precise formula set out in W.D., nor was she required to do so. She considered it convenient to first set out her assessment of the Crown’s evidence before turning to her assessment of the credibility of the accused. There is nothing wrong in doing that, provided that the onus of proof is never placed on the accused and provided that the trial judge understands that it is still possible to disbelieve the accused and nevertheless have a reasonable doubt based on his evidence.

20Having first found the complainant to be credible, the trial judge considered and rejected the testimony of Mr. Karatekin as not being credible. The next sentence of her reasons was, “The court does not have any reasonable doubt as to his guilt on the charge of sexual assault based on all of the evidence at trial.” It would have been preferable if the trial judge had not skipped over the intervening step of determining that the defence evidence did not give rise to a reasonable doubt, before looking at the whole of the evidence and finding the Crown had met its onus of proving guilt beyond a reasonable doubt. However, it is not appropriate to zero in on one sentence out of 31 pages of reasons and determine, on this basis alone, that the trial judge made such a fundamental error in where the burden of proof must lie. Looked at in context, I am satisfied that the trial judge applied the correct standard. I would not give effect to this ground of appeal.

(2) The Credibility of the Accused

21The trial judge gave four reasons for finding that the accused was not a credible witness: (a) he was evasive in his testimony; (b) his evidence about the cellphone number was not worthy of belief; (c) he misled the court about having an injury to his ankle; and (d) he lied to and misled the police in his statement.

(a) Evasiveness of the Accused

22The portion of the evidence the trial judge found to be evasive related to video footage from outside the hospital as Mr. Karatekin was leaving for McDonald’s with AM, when he appeared to be giving a “thumbs up” gesture to people inside the hospital. On cross-examination, it was suggested to him that he was gesturing to his friends that maybe he was going to “get lucky” with AM. He denied this, stating it could have meant any number of things such as “We’re really excited, we’re getting McDonald’s.” He also said, “I don’t know what that has to do with anything,” and “I don’t know what to say.” The Crown did not press the point further at that point, but raised it again later in the cross-examination. At that point, Mr. Karatekin commented that you cannot believe everything media tells you and that this video clip was just 10 seconds out of the whole night. He declined to explain further.

23Based on a written transcript, it is difficult, if not impossible, to get any feel for whether Mr. Karatekin was being evasive on this point. In the initial portion of the transcript on this point, the Crown and Mr. Karatekin were talking over top of each other, which makes it even more difficult. This was not an important point, was not pressed by the Crown, and does not appear to me to be particularly evasive on its face. However, the trial judge was in a unique position to make that call as much would depend on tone of voice, facial expression, and the like. This is an issue on which the trial judge is entitled to deference. Indeed, this issue, although raised, was not seriously pressed by the appellant.

(b) The Cellphone Number

24The first basis articulated by the trial judge for her adverse credibility findings against Mr. Karatekin was in relation to the timing and manner in which he obtained AM’s cellphone number. Mr. Karatekin testified that after AM pushed him away, told him she did not want to continue kissing him, and told him she was a lesbian, he asked her for her cellphone number. The trial judge found that this “made no sense” and was “unworthy of belief,” because it was clear she was not interested in him.

25Mr. Karatekin testified that after AM gave him what she said was her cellphone number, he called that number from his phone. Her phone did not ring. He asked her if she had given him the right number, and she said she had not. He then asked her if she wanted to give him the right number and she agreed, providing him with the correct number, which he also tested by calling it or texting it. He denied that the reason he called the first number was because he was “suspicious” that AM had deliberately given him a fake number. He explained this is a normal practice for him whenever he receives someone’s number in order to check its accuracy. The trial judge rejected this explanation, stating:

This made absolutely no sense. His explanation that he does this when someone gives him a number, also doesn’t make sense. It is more consistent with him suspecting she had given the wrong number and trying to confirm that situation.

26The appellant submits that the trial judge’s handling of this issue was unbalanced and shows a higher degree of scrutiny given to the evidence of the accused as compared to that of the complainant. I agree. In my view, the trial judge failed to take into account countervailing factors that provide an innocent explanation for the conduct admitted by the accused.

27First of all, there was no tangible objective evidence (such as cellphone records or an independent witness) that this exchange occurred. AM testified that this had happened, said that she was afraid of Mr. Karatekin, and that she deliberately gave him a wrong number. She further testified that he then became angry and grabbed her face in a threatening manner and insisted that she give him her real number, which she then did. Mr. Karatekin’s testimony differed only with respect to whether he became angry, grabbed AM, or behaved in a threatening manner. He did not perceive her to be afraid. However, his account of asking for the number, checking it, and then asking for the correct number, was given freely. In considering the evidence of the complainant about flirting with Mr. Karatekin, telling him she found him attractive and engaging in consensual kissing with him for a number of minutes, the trial judge commented favourably on her candour, finding it enhanced the credibility of her evidence. No such credit was given to Mr. Karatekin for acknowledging the context and timing in which he asked for the cellphone numbers.

28Second, in light of Mr. Karatekin’s evidence as to the conduct of AM prior to pushing him off and saying she was a lesbian, it is not particularly surprising or “odd” that he might ask for her telephone number. Indeed, much of the earlier conduct by AM (flirting, telling him he was attractive, and kissing him freely) can be seen, at the very least, as sending a mixed message. This should at least have been taken into account by the trial judge in weighing the impact of this evidence.

29Third, the trial judge rejected out of hand the explanation given by Mr. Karatekin of his usual practice of making a test phone call to ensure he has properly entered a number given to him. Perhaps this is based on the trial judge’s own personal experience, but it is by no means a universal one. I can say, for example, that I routinely do the same thing—I send a test email, phone call, or text message to ensure I have entered an address or phone number correctly in my contact list. Frequently, I have not entered it correctly the first time, and I seek out the correct information. That is my own experience, and I recognize it is merely anecdotal. Apparently, that is not the experience of the trial judge, but that does not mean that it is bizarre or nonsensical that other people do it. Obviously, the trial judge is not required to merely accept the explanation given by the accused, but it was not fair to dismiss it out of hand as making no sense and being unworthy of belief merely because it is not consistent with what the trial judge would do in the same situation. His explanation is at least a logical inference that could be drawn as a reason for calling the number, and is inconsistent with his having a sinister motive. It is unfair to the accused to draw the opposite inference, that his conduct is suspicious and unworthy of belief, regardless of what the trial judge might think in her experience is more likely.

30Fourth, the trial judge failed to take into account that by placing a call to AM’s phone number, Mr. Karatekin was also giving her his own phone number. The trial judge ought to have at least considered whether a person who had committed the acts complained of by AM would want to give away his identity in such a manner.

31In short, the trial judge considered only the possible negative connotations of the interactions involving the cellphone and ignored any of the interpretations that could be seen as neutral or advantageous to the accused. She then used the negative inferences to conclude not only that she did not believe the accused with respect to his explanations about the phone call, but to undermine his overall credibility and reject his evidence as to the incidents at the heart of the allegations against him.

32If this had been an isolated instance of an unbalanced level of scrutiny, it might not be sufficient to render the verdict unsafe. However, it was not. I will deal below with the cumulative effect of the aspects of the trial judge’s analysis I consider to be problematic.

(c) The Ankle Injury

33The second basis for the trial judge’s finding that Mr. Karatekin’s evidence was unworthy of belief related to his testimony about his injured ankle.

(i) Misapprehension of Evidence about the Ankle

34Mr. Karatekin had testified (and advised the police) that he and his friends had been involved in an altercation in which seven bouncers jumped them and assaulted them outside a nightclub. He further testified that he had some minor injuries on his face as a result and that he had injured his ankle. He denied that he had ever taken AM to the ground beside some bushes and assaulted her there, causing her wig to fall off, as alleged by AM. He testified that when he and AM were kissing and moving about a little, his ankle caused him to lose his balance briefly and he grabbed AM to prevent them both from falling. He denied that either of them actually fell, but said that this was the point when her wig fell off. He said she put the wig back on and they resumed kissing.

35The trial judge ruled that the video of Mr. Karatekin walking away from the hospital was inconsistent with the testimony of Mr. Karatekin that he “could not walk well and could not put his full body weight on his ankle.” She noted that the video shows no limping, no favouring of the ankle, and no problem putting weight on the ankle. It is true that Mr. Karatekin appears on the video to be walking without difficulty. However, the trial judge misapprehended what Mr. Karatekin said about this in his testimony at trial. In fact, he acknowledged that he was able to walk without difficulty. He said that his ankle was swollen, and that it hurt if he put it at a particular angle, or if he put his full body on it. As such, his testimony about the ankle is not inconsistent with the video, nor is his explanation of losing his balance when holding and kissing AM because of turning his ankle at an awkward angle. Further, Mr. Karatekin pointed out on his cross-examination that he told the police that his ankle had been injured and showed them the swollen ankle during his video-taped statement.

36Discounting the evidence of Mr. Karatekin about the injury to his ankle cannot be regarded as immaterial in the context of what the trial judge herself said about it. She stated (at p. 28, lines 6-10):

Whether he had a problem with his ankle, or balance, is important in this trial, as it supports a key aspect in his version that he lost control of his footing, or balance and had to grab the complainant to prevent her from falling.

And further (at p. 28, lines 25-28):

Misleading the court on the issue of the ankle injury, or a problem with balance, is a significant part of his version of events. The court disbelieves his evidence in this regard.

(ii) Uneven Scrutiny

37The trial judge also noted that Mr. Karatekin claimed at trial that he could not remember which ankle had been injured, even though he subsequently re-injured it and missed playing soccer for several months. This also was used to draw an adverse inference as to his credibility that the injury ever happened. The incident giving rise to the charge in this case occurred on April 2, 2016. Mr. Karatekin gave his evidence at trial on August 29, 2017. The trial judge did not take the passage of time into account as a possible explanation for Mr. Karatekin not remembering which ankle it was. This can be contrasted to the way the trial judge dealt with the complainant’s failure to mention to the police that the accused held her up against the ledge by locking his legs around her back, preventing her from moving. Notwithstanding the fact that the complainant was alleging that this was the mechanism that caused her knee to be injured (one of the pieces of physical evidence the trial judge found to be corroborative of her testimony), the trial judge dealt with this by describing it as “a relatively inconsequential inconsistency in her disclosure” that she would characterize as “to be in the nature of human imperfection.” Similarly, there were inconsistencies in some of the evidence given by AM’s friend, H., including that she maintained that she and N. had returned to the hospital, which was clearly incorrect. In dealing with that inconsistency, the trial judge noted that it was more peripheral than some of her other observations and that “it is not something the Court would find significant in her evidence, testifying so long after the events.” In my view, the trial judge gave Mr. Karatekin’s inability to remember which ankle had been injured a higher degree of scrutiny. There was no consideration that this could be in the nature of “human imperfection” or to have been as a result of “testifying so long after the events.” The treatment was not balanced.

(iii) Conclusion on Treatment of Ankle Injury Evidence

38Given the pivotal role this issue appears to have played for the trial judge, the failure to be balanced in her approach and the misapprehension of Mr. Karatekin’s evidence about the point are particularly problematic.

(d) The Statement to the Police

(i) Content of the Statement

39On April 3, 2016, Mr. Karatekin attended at the police station voluntarily and gave a statement to the police. The statement was video and audio recorded; the transcript covers 76 pages. Mr. Karatekin described meeting AM at the hospital and going to McDonald’s with her to buy food for his friends and her friends. He said on the way back they were standing on the street kissing. He denied any other physical contact. He said that her friends came out and got their food, but then left him and AM on the sidewalk. Again, they were kissing. He said his hands were on her hips and they were standing up. He said at the end she told him she was a lesbian and that she wanted to go. He denied that she ever said “No” or asked him to stop kissing her prior to that. When asked, he denied biting her or kissing her so hard that her lip was injured. When asked, he denied taking her to the ground at any point. When asked, he denied touching her breast. He was asked (at page 36) if her hair had come off when he pushed her to the ground. He immediately replied that her hair had fallen off, but consistently said that this did not happen as a result of forcing her into the bushes, and consistently denied ever being off his feet. In answer to a question, he said that the wig had come off when they had almost fallen, blaming his injured ankle for this. He showed the ankle to the officers. He told the officers about asking AM for her cell phone number, then calling it, and asking her if it was the right number because her phone did not ring. He said she told him it was wrong and that she then gave him the right number. Then she left. Subsequently (at page 50), one of the officers suggested to Mr. Karatekin that he had already lied to them. He asked how he had lied, and the officer replied that he had left out an important thing by not telling them the wig had fallen off. Mr. Karatekin explained that he had forgotten to mention it and that he did not see it as changing anything. Toward the end of the interview, the officers asked him if he understood what was meant by sexual assault, and he replied “rape.” He was asked if pushing fingers into something, such as a vagina, would be sexual assault and he replied that it would, but that he did not do that. The officer then started to ask about groping or touching butt cheeks. Mr. Karatekin immediately stated that he touched her butt cheeks, but that at that point she had not ever said “Don’t do that” or “Stop” and that if she had, he would have stopped.

40Mr. Karatekin’s evidence at trial was not shown to be inconsistent with the totality of the statement he gave to the police. However, on cross-examination it was put to him that at the beginning of his statement to the police he said that the only contact he had with AM was kissing, and that this was inconsistent with what he later told the police (and also said at trial) with respect to her almost falling, the wig coming off, and that he touched or may have touched her butt cheeks.

(ii) Treatment of the Statement by the Trial Judge

41The trial judge found that Mr. Karatekin’s statement to the police was misleading and not truthful. She held (at p. 29, line 27 – p. 30, line14):

…[Mr. Karatekin] testified that he was accurate in his statement and did not lie, or mislead the police. However, in his testimony he did admit that he had not told the truth in his statement, as he said they only kissed once, and that was before the complainant’s friends came and took the food.

During the course of being interviewed by the police, he added more events that had taken place, such as, the complainant’s wig coming off, almost falling down, and the complainant telling him she was a lesbian and to stop kissing. He was also misleading in the statement to the police, when he was continuously asked what type of touching there was, and he stated only kissing, and it was not until page 64 that he mentioned, for the first time, that he touched her butt cheeks.

42The trial judge rejected Mr. Karatekin’s explanations for not having disclosed all of this information at the outset. She noted that he was entirely sober and had some time to think about the allegations before appearing at the police station. She held (at p. 30, lines 14-23):

The court does not accept his explanation for these misleading statements based on having been assaulted on the night of the allegations, or his explanation that he had previously been in custody at the police station. The court makes that finding based on the nature of the questions and the answers he gave which seem relaxed and calmly given. He also agreed that the police were not being aggressive with him.

43The appellant submits that the trial judge incorrectly used Mr. Karatekin’s statement to police in several ways. First, the appellant argues that the statement was not inconsistent with the evidence at trial, regardless of the timing of the various details provided. Second, the appellant argues that an accused had the right to remain silent and he did not waive that right merely because he disclosed some information at the outset, but other information later. The appellant submits that characterizing him as having lied to the police because he did not initially disclose everything is a violation of his right to silence. Third, the appellant argues that the trial judge misapprehended the explanation he gave for his belated disclosure, thereby compounding the problematic nature of using the statement to undermine his credibility at trial.

(iii) Were there inconsistencies between the statement and the accused’s evidence at trial?

44The trial judge held that Mr. Karatekin initially lied to the police by telling them that he had only kissed AM once. That is not something Mr. Karatekin ever said. He described that they “were kissing” and agreed with one of the officers who described it as “making out.” It is apparent from his statement to the police that this was never a single kiss, but an ongoing act of kissing, over an extended number of minutes.

45The trial judge also mischaracterized Mr. Karatekin’s initial evidence about whether there was any kissing after AM’s friends came and got their food, leaving Mr. Karatekin and AM on the sidewalk. The trial judge held that Mr. Karatekin initially told the police that the only kissing was before her friends arrived to get the food. This finding flows from a question asked by the police officer immediately after Mr. Karatekin told them about her friends coming and getting the food. The officer asked (at p. 12), “There was no more physical contact between you?” to which Mr. Karatekin answered, “No.” Much fuss was made about this in cross-examination at trial, and ultimately Mr. Karatekin conceded that there had been other physical contact after that point in time, including kissing, and that this one-word answer to this one question was untrue. However, he maintained he did not lie to the police. Moreover, on the very next page of the transcript, the officer asked Mr. Karatekin what happened after AM’s friends left, and he immediately said they were kissing, and that other than kissing, they didn’t do anything. Apart from his answer to that one question at p. 12, he consistently maintained that there was kissing before the friends came and kissing afterwards, and nothing else. It is entirely possible that Mr. Karatekin understood “no more physical contact” to mean “nothing more than kissing” as opposed to “nothing after that time.” The question is somewhat ambiguous and English is not Mr. Karatekin’s first language. In these circumstances, I consider it somewhat unfair for the trial judge to characterize Mr. Karatekin as having lied, misled, or not told the truth to the police about the kissing continuing after the friends left. To the extent his answer was inaccurate, it was corrected within one page of the transcript.

46To the extent it was appropriate for the trial judge to take into account any inconsistencies in the statement to the police, she was at least required to look at particular statements in context and to assess the statement as a whole. As noted by the Court of Appeal in R. v. G.L., 2009 ONCA 501, 67 C.R. (6th) 278 at para. 29:

A trial judge is entitled, indeed required, to make findings respecting statements made by an accused and their meaning. But she must do so in context and on the basis of the statement read as a whole. Here, the trial judge focussed almost entirely on the utterances of the appellant that were capable of an inculpatory interpretation and failed to consider or to reconcile the various utterances that were at worst equivocal and – in the one instance, at least – markedly exculpatory in nature. In Mallory, this Court recently referred to the “entire statement” principle in the following terms, at paras. 203 and 208:

In our view, the trial judge erred in approaching the utterances as a series of separate statements rather than as one statement. It is well accepted that if the Crown tenders the statement of an accused, it cannot pick and choose those parts of the statement that it would like the jury to hear; it must take “the good with the bad”, and both the “good” and the “bad” are admitted for their truth, for and against the accused. Moreover, a party wishing to adduce a statement must put in as much of the statement as is necessary to permit a fair understanding of the individual utterances.

47The trial judge was also critical of Mr. Karatekin for not telling the police about AM telling him she was lesbian until later in his interview. I also consider this to be an unfair criticism. The first eight pages of the transcript are about matters other than what happened between Mr. Karatekin and AM. Mr. Karatekin starts to provide his account of what happened at page 9. At pages 9 and 10, he describes meeting the group including AM at the hospital and going to McDonald’s with AM. At page 11, he first mentions the kissing, which is logically where it would fall in the sequence of events, even on AM’s evidence. Mr. Karatekin was not simply providing a long uninterrupted narrative; this was a question and answer format. The first mention by Mr. Karatekin that AM told him she was a lesbian is at page 20 of the transcript. He said this was at the end of the period of time when they were kissing. There was no logical earlier time in the transcript when he could fairly have been expected to discuss that. It is not possible for Mr. Karatekin to say everything at once. It is unfair to characterize this as an omission or delayed disclosure, when it follows the normal time narrative, which was largely guided by the questions asked by the interviewing officer.

48Again, the individual utterances must be looked at in context and within the statement as a whole. In my view, a fair assessment of these utterances is that they are not inconsistent, nor do they involve any delayed or reluctant disclosure.

49The trial judge held that Mr. Karatekin misled the police by saying throughout his interview that there was only kissing, when asked about what type of touching there was, and then not stating until page 64 that he had touched AM’s butt cheeks. However, at page 29 of the transcript, one of the officers asked Mr. Karatekin where his hands were when he was kissing AM and he answered that they were “on her hips.” If a man and a woman are standing face to face and kissing and he has his hands on her hips, it seems to me that it would be virtually impossible for him not to touch her butt cheeks at some point. Be that as it may, as soon as the officer mentioned “butt cheeks” when explaining what could constitute sexual assault, Mr. Karatekin immediately said, “I touched her butt cheeks.” Under cross-examination when asked why he did not tell the police earlier that he had touched the butt cheeks, Mr. Karatekin said he was telling them everything that he remembered at the time. At trial, he testified that he “may have” touched the butt cheeks and on cross-examination said this was “probably” the case.

50This detail about the touching of butt cheeks, however, was not disclosed earlier in the interview, when Mr. Karatekin was asked about where his hands were when he was kissing AM. To that limited extent, it might be fair to characterize this as a slight inconsistency.

(v) Uneven Level of Scrutiny

51In her evidence at trial, AM testified that the injury to her knee had been caused by Mr. Karatekin when he was sitting on a cement ledge and she was standing in front of him. She said he wrapped his legs behind her, pulling her against the concrete so forcefully that it caused her knee to be injured, even under her jeans. Although she showed that injury to the police at the time of her police statement and the police photographed it, she did not disclose to them anything about this detail of Mr. Karatekin holding her against the concrete ledge in this manner. Her first disclosure of this detail was at trial. The trial judge found this delayed disclosure to be a “relatively inconsequential inconsistency” which she accepted as part of “human imperfection.”

52On the other hand, Mr. Karatekin was found to have lied to and misled the police by providing additional details, not more than a year later at trial, but minutes later within the same brief statement to the police. This contrast in the treatment of the Crown evidence as compared to the defence is striking.

(v) Did the trial judge’s use of the statement violate the accused’s right to silence?

53The appellant further submits that the trial judge’s reliance on the belated disclosure of touching AM’s butt cheeks violates his right to remain silent.

54Clearly, an accused has no obligation to speak to the police and, with few exceptions, it is improper to make adverse findings of credibility against an accused because he failed to provide information to the police at some point prior to his testimony at trial. Likewise, the silence of an accused before trial cannot be used as positive evidence to infer guilt. However, where the accused does make a statement to the police, he may be cross-examined at trial with respect to any inconsistencies between that statement and his evidence at trial. R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519 (“Turcotte”); R. v. Hill, 2015 ONCA 616, 330 C.C.C. (3d) 1 (“Hill”); R. v. Kovacevic, 2017 ONSC 193, 4 M.V.R. (7th) 288; R. v. G.L., 2009 ONCA 501, 67 C.R. (6th) 278; R. v. J.S., 2018 ONCA 39, 140 O.R. (3d) 539; R. v. W.L., 2015 ONCA 37, 123 O.R. (3d) 641. One of the exceptions to the general rule against cross-examining on a failure to provide information to the police is when the defence raises an issue that makes the silence of the accused relevant, as for example when the defence seeks to emphasize the accused’s cooperation with the authorities. Turcotte, at para. 49.

55The difficulty that arises in this case is that there is no inconsistency between what the accused said at trial and what he told the police, if one looks at the totality of his statement to the police. What is relied upon by the trial judge are inconsistencies within the police statement itself, and in particular, the failure to mention touching the butt cheeks at an earlier stage in the interview. There is no clear, bright line between the kind of delayed disclosure of details that can legitimately be taken into account in assessing credibility and a situation where the failure to make earlier disclosure is an exercise of the right to remain silent. I am not aware of, and was not referred to, any case that is “on all fours” with the situation that arises here.

56In R. v. Hill, the accused was charged with second degree murder in the death of Tashina General, who was pregnant with his child at the time of her death. He pleaded guilty to the lesser included offence of manslaughter, arguing that he was not guilty of second degree murder, relying on provocation and lack of the requisite intent. Following his arrest, Mr. Hill gave a statement to the police in which he said Ms. General had been visiting him at his home and that when she was leaving, she tripped and fell down a step. He said she told him that if she lost the baby as a result of the fall, she would tell everyone it was his fault. He told the police that he then grabbed her and choked her for about three minutes, demonstrating the position of his hands and thumbs on her neck. At trial, Mr. Hill testified that Ms. General tripped and fell on the stairs and said that if she lost the baby she would tell everyone he had thrown her down the stairs. She continued on to the car, where she fell again, and again said she was going to tell her friend what he did to her. Mr. Hill testified that Ms. General was angry, was hurling obscenities at him, and struck him in the face, knocking his glasses off. He said he put his arms on her shoulders to restrain her, but she continued to assault and swear at him. He testified that he “snapped” and the next thing he remembered was Ms. General on the ground, motionless and without a pulse, with his hands around her neck.

57One of the grounds of appeal raised by Mr. Hill after his conviction for second degree murder was that the Crown’s cross-examination of him on his statement to the police was improper. He was not successful on that ground of appeal (although the Court of Appeal found in his favour in respect of two other grounds and ordered a new trial). In dealing with the argument that the difference between the statement and the evidence at trial was about an omission of details in the statement, Doherty J.A. held:

Counsel for the appellant submits that cross-examination on inconsistencies between a prior statement and trial testimony cannot extend to cross-examination on omissions from the prior statement. On this approach, Crown counsel’s cross-examination of the appellant about his failure to mention Ms. General’s verbal abuse and assault would infringe the appellant’s right to silence, but Crown counsel’s cross-examination on the inconsistency between the appellant’s recollection of the act of strangling Ms. General in his statement and his inability to recall any of those details at trial would be appropriate.

With respect, the distinction counsel attempts to draw is not tenable. Omissions can be integral to the existence of material inconsistencies between two versions of events. An account of an event which leaves out important details may be viewed as inconsistent with a subsequent account that includes those details. Hill, at paras. 44-45

[Emphasis added.]

58In determining that this line of cross-examination was permissible, the Court of Appeal drew a distinction between cross-examination directed at credibility, as opposed to that which seeks to draw an inference of guilt from the accused’s silence. Doherty J.A. explained:

The propriety of cross-examination on a prior statement made by an accused to the police turns on the purpose of the cross-examination. If the cross-examination is designed to challenge the credibility of an accused’s testimony based on inconsistencies between that testimony and a previous version of events provided by the accused, the cross-examination is appropriate. If, however, the cross-examination invites the trier of fact to draw an adverse inference from the accused’s silence when questioned by the police, the cross-examination is inappropriate. Sometimes, both purposes may be in play. A trial judge can refuse or limit cross-examination on the prior statement when there is a legitimate concern that the cross-examination may trespass improperly on the accused’s right to silence. The trial judge may also give a limiting instruction cautioning against misuse of the right to silence if the cross-examination merits that instruction. Hill, at para. 46

59That said, the mere fact that an accused has told some things to the police does not mean he has waived his right to silence and that his credibility can be brought into question if he supplies further details at a later date. As stated by the Supreme Court of Canada in R. v. Turcotte:

Nor do I share the Crown’s view that by attending at the detachment and answering some of the police’s questions, Mr. Turcotte waived any right he might otherwise have had. A willingness to impart some information to the police does not completely submerge an individual’s right not to respond to police questioning. He or she need not be mute to reflect an intention to invoke it. An individual can provide some, none, or all of the information he or she has. A voluntary interaction with the police, even one initiated by an individual, does not constitute a waiver of the right to silence. The right to choose whether to speak is retained throughout the interaction. Turcotte, at para. 52

60In R. v. G.L., the complainant was 19 at the time of trial and alleged that the accused sexually assaulted her during a period of time when she was from 3 to 7 years old. The accused gave a statement to police in which he made vague statements about doing something “very bad” and “serious touching” that “totally destroyed his private life because of [his] guilt.” He gave as an example that the complainant had touched him, including sitting beside him and writing a number on his back. He denied touching the complainant in a sexual way.

61At trial, the accused denied any sexual contact with the complainant. He testified that his reference to “something bad” and “serious touching” related to him letting the complainant sit on his lap and putting his arm around her. The trial judge found that the accused’s reference to something “very bad” and “serious touching” was sexual in nature and convicted him of sexual interference. In her reasons, she stated that the accused’s testimony about this referring to the complainant sitting on his lap “flies in the face of logic” and she noted that the accused “did not at any point in his statement to police make mention of [the complainant] sitting on his lap.”

62The Court of Appeal held that the trial judge erred by making an adverse finding of credibility based on the accused’s silence about the complainant sitting on his lap. Blair J.A. held:

It is apparent that the trial judge used the appellant’s failure to deny that what happened between him and the complainant was of a sexual nature as proof that, in fact, it was. She used his failure to volunteer that the complainant at some point sat on his lap as supportive of her conclusion that the “something very bad” he acknowledged happened was something very bad of a sexual nature. In both respects she drew an adverse inference about the appellant’s credibility from his silence. This, she was not permitted to do. As this Court has recently observed in R. v. Palmer, 2008 ONCA 595, at para. 9:

It was open to the trial judge to reject the appellant’s explanation given at trial because it was not believable and to use that finding in assessing the appellant's overall credibility. However, the trial judge went further and used the appellant's silence as a basis for finding her incredible. That he was not entitled to do.

The appellant had a constitutional right to remain silent during any part of the police interview. That right was not extinguished simply because he chose to speak to the officer with respect to some matters and did not exercise his right to silence completely: see R. v. Chambers, [1990] 2 S.C.R. 1293, at pp. 1315-1317; R. v. Marshall (2006), 77 O.R. (3d) 81 (C.A.), at para. 82. The negative inferences the trial judge drew against the appellant were significant and it cannot be said the verdict would have been the same had she not made this error. This error alone would be sufficient to warrant appellate intervention. R. v. G.L., at paras. 38-39

[Emphasis added.]

63It can be appropriate to take into account the failure to provide details in an earlier account if the issue is directly raised by the defence. In R. v. W.L., the accused was charged with sexual assault and sexual interference in relation to his step-daughter when she was between the ages of 6 and 9. When interviewed by the police he acknowledged touching his step-daughter on two or three occasions, but denied that this was for a sexual purpose. He did not elaborate any further. At trial, the accused denied any touching of a sexual nature, but testified that he touched the complainant’s rectum on three occasions to inspect and deal with a problem she was having with pinworms. In his examination in chief, the accused was asked by his own counsel why he did not provide the detail about the pinworms to the police when he was interviewed and the accused testified that he was scared and confused. The Crown cross-examined the accused extensively on this point. The jury convicted the accused of sexual assault and sexual interference.

64The Court of Appeal set aside the verdict and ordered a new trial because the cross-examination infringed on the accused’s right to silence and the trial judge failed to caution the jury appropriately in that regard. The Court of Appeal held that the Crown was justified in cross-examining the accused about the reasons he had not given these details to the police because this topic was put in issue by defence counsel. However, the Crown went well beyond permissible limits by suggesting that the two-year silence between the police statement and trial was relevant to a determination of the accused’s credibility. Further, the Court noted:

Even if it were determined that Crown counsel’s cross-examination fell within the boundaries of fairness, a proper instruction to the jury was of critical importance. There was no such instruction. The jury ought to have been told that they were entitled to take into account, in assessing the appellant’s credibility, all of his evidence, including his explanation of why he did not provide a fuller account of his conduct. The jury ought to have been cautioned, however, that the appellant had a right to remain silent, had a right to choose what to say and what not to say, and that his failure to provide a fuller explanation, from the time of his interrogation until trial, could not be used to assess his credibility at trial: Palmer, at para. 9. Further, the jury ought to have been told that the appellant was under no duty or obligation to disclose anything to the police and no adverse inference could be drawn against him from his failure to do so. R. v. W.L., at para. 27

[Emphasis added.]

65None of the cases to which I was referred dealt with a situation in which the accused’s testimony at trial was the same as his statement to the police, but in the statement to the police not all of the details were volunteered immediately. In W.L., the Court of Appeal held that where the subsequent details were provided at trial two years later, the jury must still be instructed that the accused’s failure to provide a fuller explanation initially could not be used to assess his credibility at trial. The delay in disclosure of the butt cheek touching by Mr. Karatekin (if indeed, one takes it as such) was a matter of minutes – not hours, and certainly not years. In my view, there is a world of difference.

66I also note that the details added by Mr. Karatekin were not exculpatory in nature – they added more details of the actual sexual contact between him and AM. Although he said this contact was consensual, it is arguably to his credit that he disclosed it at all. In my view, it was unfair to treat this disclosure as a factor undermining his credibility. To the extent it was inconsistent at all with his previous disclosures to police, the difference is marginal.

67There is one area in which it might have been appropriate for the trial judge to take into account the delayed disclosure of details by Mr. Karatekin. Defence counsel at trial (not the same as counsel on appeal) made a submission in argument (before the Crown made any submissions) that the accused’s willingness to give a full statement to police was a factor that should be taken into account as bolstering his credibility. That submission included the following:

He chose to speak to the police, as he testified, knowing that he had an option to speak to counsel, and knowing that he had an option not to provide a statement. And he did this, in his own words, because he wanted to provide the truth in its entirety.

In his own words, he also said that he was nervous, it was his first time speaking to the police in this way, this was his first time testifying. When he was asked questions, he gave complete responses. He was honest in his responses.

68Given that submission, I agree with the Crown that it was open to the trial judge to reject that defence argument if she was of the view that the statement given by Mr. Karatekin was less than fully forthcoming or less than completely truthful. It was open to the trial judge to refuse to take the statement into account as enhancing Mr. Karatekin’s credibility. However, while this point relates to credibility, it is not the same thing as finding that the accused’s overall credibility is undermined because he lied to and misled the police.

69In all the circumstances, I find nothing improper in the Crown’s cross-examination on the statement. If there were real inconsistencies between the statement and the accused’s testimony at trial, it was appropriate to take that into account in the overall assessment of credibility. There were no such inconsistencies. Further, to the extent there were internal consistencies in the statement to the police, it was also open to the trial judge to take that into account, provided that doing so did not infringe upon the right of the accused to remain silent. I have found the trial judge’s references to some of the inconsistencies and omissions to be unfair, as stated above. The one area that potentially intrudes on the right to remain silent is the belated disclosure of touching AM’s butt cheeks. On balance, if this infringes the right to remain silent, it does so very minimally. The real issue is whether there is any inconsistency between the later disclosure of touching the butt cheeks and the earlier statement about engaging in an extended “make-out session” of kissing the complainant while holding her by the hips and moving around somewhat. Since there was no real explanation of what touching butt cheeks entailed, either in the police statement or at trial, it is difficult to find that the two statements are sufficiently at odds as to find that he lied to and misled the police or to undermine his overall credibility as a witness.

(vi) Reasons given by the accused for any discrepancies

70The trial judge rejected the explanation given by Mr. Karatekin for what she termed his lying to the police and late disclosure of the complainant’s wig coming off, almost falling down, the complainant telling him she was a lesbian and to stop kissing, and the butt touching. She noted that he was contacted by the police, turned himself in, was entirely sober and “had some time to think about the allegations.” She further held:

The court does not accept his explanation for these misleading statements based on having been assaulted on the night of the allegations, or his explanation that he had previously been in custody at the police station. The court makes that finding based upon the nature of the questions and the answers he gave which seemed relaxed and calmly given. He also agreed that the police were not being aggressive with him.

71Mr. Karatekin did not agree that he had “a little bit of time to think a few things over, and collect [his thoughts] before speaking to the police”, as suggested to him by the Crown in cross-examination. Rather, he replied that he did not have time to think because he was in a bad situation as a result of the assault on him from the night before and was in bed resting when the police called him. They told him that if he did not come into the police station right away, the police would come to his house, so he got up and went to the police station.

72Mr. Karatekin also pointed out in the course of cross-examination that English was not his first language. This was also apparent in his interview with the police. For example, he could not think of the English word “wig.” He agreed that the officers were “pleasant and nice” and were not aggressive, but said that at times he had difficulty with “the way they were asking [him]things”, stating he “[didn’t] know how to explain.” He also mentioned being in handcuffs and being put in a cell, experiences that were new and difficult for him. The trial judge showed little, if any, appreciation for these circumstances.

73Further, Mr. Karatekin gave a different explanation for not mentioning the wig earlier. It simply had not occurred to him, and he did not see it as having anything to do with anything. This is understandable given Mr. Karatekin’s version of the event, which was that he did nothing to precipitate the wig falling off. It is only on AM’s version of the event that the wig coming off has any significance, because she said it occurred when the accused pushed her to the ground. The trial judge failed to take that explanation into account.

(vii) Conclusions on Use of the Police Statement

74To the extent there was an infringement of Mr. Karatekin’s right to remain silent by the trial judge’s treatment of these various aspects of the police statement, I do not find such infringement to be significant. However, I am troubled by the extent to which the trial judge found Mr. Karatekin to have lied to and misled the police and her reliance on such findings to undermine his credibility. There was no real discrepancy in the evidence given by Mr. Karatekin at trial and the version he ultimately gave to the police. This is not a situation where Mr. Karatekin directly contradicted an earlier version of the events; he merely added a detail about touching AM’s butt cheeks. That detail was not inconsistent with his previous disclosure, it was merely a detail provided in direct response to a question he was asked. Likewise, characterizing his failure to reveal that the wig had fallen off was unfair, given that it was essentially irrelevant to Mr. Karatekin’s version of the events. When he was asked about it directly by the police officer, he immediately provided the information. To the extent events came out in a jumbled sequence, the trial judge failed to consider the question and answer format of the interview. When raised by the police, Mr. Karatekin provided the information. Any slight inconsistencies or delays in disclosure of details that did exist were treated by the trial judge far more harshly than was the case for inconsistencies in the evidence of Crown witnesses. Further, the trial judge made no allowances for language difficulties and the fact that Mr. Karatekin was a young man who had never had formal contact with the police before and now found himself in the very stressful situation of being arrested, handcuffed and held in a cell at the police station.

(3) The Complainant’s Physical Injuries and Demeanour

75The trial judge placed considerable reliance on the physical injuries sustained by the complainant, as well as her demeanour after the incident as described by her friends N. and H.. Clearly, there is no problem with considering such evidence; it can often be crucial in cases of this nature, as was noted by the trial judge. There are, however, some areas of concern.

(a) Material Misapprehension of the Evidence

76After referring to the injuries to AM’s lip, cheek, and knee, the trial judge stated that Mr. Karatekin, in his evidence, had “admitted that [AM] had sustained various injuries that were visible, and were not visible when she was in the hospital emergency room earlier.” I agree with the appellant that this is a serious misapprehension of the evidence. Mr. Karatekin never agreed that AM sustained any injuries – he vehemently denied causing any injuries and denied ever seeing them.

(b) Different Level of Scrutiny

77As I have already noted, the failure of the complainant to disclose to the police the mechanism by which she received the injury to her knee was glossed over by the trial judge as merely a human imperfection, whereas any such oversights or delayed disclosure of details by the accused were not treated as benignly.

78The trial judge placed considerable reliance on the physical injuries to AM as providing corroboration of her testimony about being sexually assaulted, describing the physical evidence as being “uncontested and uncontradicted.” The injuries to the inside of AM’s upper lip, left cheek at the jawline and knee were photographed by the police at approximately 8:00 p.m. on April 3, 2016, less than 24 hours after the incident. Those photographs can be regarded as corroboration of the injuries, and to some extent the timing. However, there are problems with any other corroboration relied upon.

79The trial judge relied on the evidence of H. and N. that AM was crying when she returned to the McDonald’s (after parting ways with Mr. Karatekin), and on the evidence of N. that AM’s hair and clothing were disheveled. The trial judge found this testimony to corroborate AM’s evidence that she was sexually assaulted. Although the trial judge noted that H. had given evidence about returning to the hospital that proved to be inaccurate, she found this error to be insignificant because of the passage of time.

80The trial judge failed to address the extent to which some of the evidence of H. and N. contradicted each other, and contradicted the evidence of AM, as well as the extent of the reliability problems for both of them.

81N. initially described AM’s demeanour at the McDonald’s as being “nervous,” “distraught,” and “uncomfortable.” On cross-examination, he again confirmed that she was “nervous and distraught.” It was only when it was put to him that she was not crying, that he said, “She did, at some point, shed tears.”

82Although N. testified that AM’s hair and clothing were disheveled, this was not noticed by H., who spent more time with her. N.’ testimony on this point is worth quoting. He stated (with respect to AM’s clothing):

Yeah, her physical appearance seemed a bit, like, um, uh, I don’t know how to explain it, like, she seemed like herself, like, um, made, made up, you know, like before. She seemed, like a bit, like, messy, like, her clothes were a bit unruly. . .

83N. described AM’s hair at the time they were at the McDonald’s as follows:

Uh, it just seemed a bit messed up from what I seen earlier that night. Like, she, her hair was, like, straight, and everything, but, like, when I seen her it was a bit, like, um, like, undone I guess. I don’t know how to say it.

84It is worth noting that any messiness with AM’s hair may well have been because she had put her wig back on without the assistance of a mirror, after it had fallen onto the street. This is a neutral factor because Mr. Karatekin acknowledged that the wig fell off (although his evidence differed from AM as to how that happened).

85N. denied seeing any injuries on AM but said, “I think she was mentioning about her lips, how they hurt.”

86N. admitted to consuming five to six bottles of beer and a vodka and cranberry juice at the bar. He said his degree of inebriation was what caused him to fall face first on the dance floor, resulting in a significant gash above his eyebrow, which was the reason for the visit to the hospital emergency room. He also admitted to having smoked some marijuana during that same time, but did not believe that had affected him. Immediately before walking to the McDonald’s, his wound had been glued together at the hospital (rather than stitched). He was advised by the nurse at the hospital to wait for a while before leaving, but he and H. left immediately and went to the McDonald’s. He had no recollection of having passed AM and Mr. Karatekin on the sidewalk outside the hospital and being given their McDonald’s food, although it appears clear that did happen. When asked if it was possible he had passed AM on the way to the McDonald’s, he answered:

Yeah, it might be possible, because, um, like, it happened like, a year ago, or so…and sometimes I, like, I can’t tell if it was, if it actually happened, or maybe it was a dream, or, so, like, I could have possibly, um possibly could’ve run, run into her.

87In her review of the evidence, although not in her analysis, the trial judge noted that N. had been drinking and that, “The court is well aware of the impact that might have on the reliability of his perception, and recollection of events that evening.” Notwithstanding these very obvious problems with the reliability of any evidence given by N., the trial judge relied on his evidence as to the state of AM’s hair and clothing and the fact that she was crying as corroboration of AM’s testimony.

88Again, I find the trial judge’s acceptance of N.’ testimony on these points, without question or analysis, to be a stark contrast to the scrutiny she gave to the testimony of Mr. Karatekin.

89The trial judge did advert to one problem with the reliability of H.'s evidence, excusing it based on the passage of time. However, the problems with H.'s reliability were far more extensive than that, and were essentially ignored by the trial judge. H. was not merely mistaken about going back to the hospital rather than directly to the McDonald’s after running into AM and Mr. Karatekin on the sidewalk, she had an extensive detailed memory of a series of events that simply could not have occurred. The video footage confirms that AM and Mr. Karatekin left the hospital together and went to the McDonald’s. Sometime after that, H. and N. left the hospital. They went to the McDonald’s. Mr. Karatekin returned to the hospital. None of AM, H. or N. went back to the hospital. These facts are incontrovertible.

90Notwithstanding this, H. gave detailed evidence about being concerned while at the hospital that AM had been gone for a long time and that she texted her to see if she was okay. AM texted her back that they were waiting for chicken nuggets at McDonald’s. She said she then went out to check, just as AM and Mr. Karatekin were coming across the street with the food, and the three of them went into the Emergency Room. This did not happen.

91Next, H. said that she took Mr. Karatekin and AM back to the treatment room where N. was waiting to have his eyebrow stitched. She said that they divided up the food in the treatment room, and Mr. Karatekin returned to the waiting room to give food to his friends, while she and AM waited in the treatment room with N.. This did not happen.

92She then said that Mr. Karatekin came back to the treatment room around the time that N.’ eyebrow was being glued and after that all four of them left the hospital together. None of that happened.

93Outside the hospital, H. said Mr. Karatekin said he wanted to say a private goodbye to AM and H. asked AM if she was comfortable with that. When AM said she was fine, H. and N. left the other two on the sidewalk and went to the McDonald’s. It is difficult to say whether this happened or not, but it does not accord with the testimony of either AM, Mr. Karatekin or N..

94According to H., AM came to the McDonald’s after about 15-20 minutes. She told H. that she had been sexually assaulted. H. described her as shaking and blinking back tears. H. gave a detailed and vivid description of the injuries she observed. She said AM’s bottom lip was visibly swollen, “to the point where it looked like she almost didn’t have a top lip in comparison.” AM said it was her top lip that had been injured. There is some confirmation of that from the photographs taken by the police. N. said he saw no injury at all, which is also what Mr. Karatekin said. The photographic evidence does not confirm swelling to the extent described by H., even if one disregards the inaccuracy with respect to whether it was the top or bottom lip.

95H. described a bruise on AM’s wrist about the size of a dime or quarter, which she said “looked like it could’ve been caused by somebody holding it too tight, like a thumb.” AM never described such an injury, nor any assault of a nature that could have caused such an injury.

96H. said that AM lifted up her top and showed her a bruise above her left hip below the ribs. She said it was dark purple in colour and about the size of a peach or orange. This is not consistent with the testimony of AM.

97H. said nothing about AM being disheveled in her hair or clothing.

98She said she had about the same amount to drink as AM that night. She described AM as “having a light buzz going,” and as being about a three to four on a sliding scale of inebriation, with ten being blackout drunk and one being “painstakingly sober.” Although she acknowledged having the same amount of alcohol as AM, H. said that as soon as she saw the blood on N.’ face after he fell, she became stone-cold sober. Although she might have believed that to be true, physiologically it is dubious, at best.

99In short, both H. and N. were extremely unreliable historians. N. acknowledged his own frail memory and his difficulty sorting out what really happened as opposed to what he may have just imagined. H. was adamant in the accuracy of her recollections, even when confronted with video footage that showed aspects of it could not be true. Of great concern is the extent to which she has manufactured or reconstructed memories that were clearly wrong, but which she believes to be true. The trial judge does not appear to have taken this into account. She chose to rely on only the aspects of H.'s testimony and N.’ testimony that supported the complainant, notwithstanding the problems with the rest of their evidence. Again, this is in stark contrast to her exacting treatment of the testimony of Mr. Karatekin.

F. FINAL CONCLUSIONS

100I am satisfied that there was no error of law by the trial judge in the manner in which she applied W.D. I would also defer to her consideration of the extent to which Mr. Karatekin was evasive in one aspect of his testimony (the thumbs up sign to his friends). In addition to the evasiveness issue, the trial judge relied on three factors which she found rendered Mr. Karatekin’s testimony unworthy of belief, indeed to the extent it did not even raise a reasonable doubt in her mind. I find that the reasoning of the trial judge was problematic on each of these three factors.

101First, the trial judge’s reasoning with respect to the cellphone call was logically flawed and unfair. Mr. Karatekin’s evidence on his usual habit of making a test call was uncontradicted by any evidence. It was at the very least a plausible explanation and ought not to have been rejected as unworthy of belief on its face. An inference consistent with a suspicious motive should not have been drawn when a rational, innocent explanation was presented by the accused.

102Second, the trial judge subjected the testimony of Mr. Karatekin to a level of scrutiny far more onerous than that applied to the testimony of the complainant, and in particular to the testimony of H. and N.. This led the trial judge to find that Mr. Karatekin had outright lied and misled the police on a key point, whereas all he had done was provide additional details later in his statement in response to questions, as opposed to in his opening narrative. However, when the complainant failed to disclose a key fact to the police at all (with respect to Mr. Karatekin holding her up against the ledge with his legs), this was excused as mere human imperfection and of no significance.

103Third, the trial judge’s treatment of Mr. Karatekin’s statement to the police was unfair. The finding that he lied to and/or misled the police based on purported inconsistencies and omissions in his statement was unjustified. There were no real inconsistencies between what he told the police and what he said at trial. Any omissions were only a matter of timing within the police statement itself, and largely driven by the questions being asked, which Mr. Karatekin answered readily. The trial judge’s findings with respect to the police statement were a key factor leading her to reject the evidence of Mr. Karatekin at trial. This was not balanced, in my view.

104Finally, the trial judge misapprehended the evidence on key points, including: whether Mr. Karatekin had ever admitted seeing the injuries sustained by AM; what Mr. Karatekin said about how his ankle injury had affected him; and Mr. Karatekin’s explanation for his delayed disclosure of additional details in his police statement. These errors related to key points used by the trial judge to find that his testimony as a whole was unworthy of belief. They were material to her ultimate findings in the case.

105The trial judge’s analysis of three of the four factors leading to her rejection of Mr. Karatekin’s evidence (the ankle injury, the police statement and the cellphone call) was infected by flawed reasoning, including fundamental misapprehensions of the evidence and the application of a stricter level of scrutiny to the testimony of the accused. The other significant factor she took into account was the extent to which there was corroboration of the complainant’s evidence, which, again, was infected by misapprehensions of the evidence and the application of a lesser standard of scrutiny to the testimony of the prosecution witnesses. Any one of these errors might not, standing alone, rise to the level of “palpable and overriding” or have warranted appellate intervention. However, the cumulative effect is overpowering, particularly in the light of the direct link between those errors and the rejection of Mr. Karatekin’s evidence as unworthy of belief. Looked at collectively, these are palpable and overriding errors.

106In these circumstances, I consider the conviction of Mr. Karatekin to be an unsafe verdict. His conviction is set aside and a new trial is ordered.