COURT FILE NO.: CR-22-00000325-00AP DATE: 2023 04 06

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HIS MAJESTY THE KING J. Sone, for the Crown Respondent

- and -

SATESH DEVA M. Halfyard, for the Appellant Appellant

HEARD: March 6, 2023

REASONS FOR JUDGMENT [On appeal from the Judgment of J.I. Jaffe of the Ontario Court of Justice dated May 30, 2022]

RSJ RICCHETTI

The Conviction

[1] After a three-day trial before J. Jaffe, Mr. Deva was convicted of a single count of sexual assault, contrary to s. 271 of the Criminal Code.

Grounds of Appeal

[2] The Appellant raises four grounds of appeal:

i. the trial judge improperly used the complainant’s prior consistent statement to the bus driver to bolster her credibility. ii. the trial judge erred in her reliability analysis by using the detailed description of the Appellant the complainant gave to the police enhanced the reliability of her evidence. iii. the trial judge failed to adequately deal with the physical improbability of the touching in the manner in which the complainant described; and, iv. the trial judge misapprehended the complainant’s evidence about which breast was touched, which was material to her conclusion on the physical mechanics of the touching on the complainant’s version of events.

Analysis

The Events

[3] The complainant and Mr. Deva were on a GO bus, from Union Station to Mississauga. The complainant was seated next to a window. Mr. Deva sat next to her on the aisle seat. The complainant fell asleep during the bus ride. The complaint awoke with Mr. Deva’s right hand on the complainant’s left breast. She yelled: “what the fuck”. Mr. Deva responded: “I’m sorry”. The complainant, in a raised voice, said: “why are you touching me”. Mr. Deva moved to a different seat in the back of the bus. The complainant moved towards the front of the bus.

[4] The complainant told the bus driver about the touching.

[5] When the bus stopped at Robert Speck Parkway, Mr. Deva, along with others, decided he too would exit asking the driver to let him off. He tapped his card and exited the bus.

[6] The complainant recognized Mr. Deva’s, identified him as the person who had touched her. Mr. Deva again said: “I’m sorry”.

[7] The police were called.

[8] At trial, the defence denied that any touching had occurred.

[9] The sole issue was whether Mr. Deva had touched the complainant’s breast.

The Trial Judge’s Credibility and Reliability

[10] With competing versions of the events, the trial judge’s decision was entirely dependent on her credibility and reliability analysis. The trial judge’s reasons sets out the basis for her acceptance of the complainant’s evidence, rejection of Mr. Deva’s evidence and why the trial judge was satisfied beyond a reasonable doubt that Mr. Deva had sexually assaulted the complainant.

[11] Absent an error of law, the trial judge’s credibility and reliability findings are entitled to deference. The standard of appellate review was recently set out in R. v. Myles, 2023 ONCA 90:

[1] The appellant was convicted of sexual assault on the complainant. There was sexual intercourse. The sole issue was consent. The case turned on the trial judge’s assessment of credibility and reliability, which are factual findings. The law is clear that such findings should only be displaced on appeal where they “cannot be supported on any reasonable view of the evidence”: R. v. R.P., 2012 SCC 22, 344 D.L.R. (4th) 408, at para. 10; R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81-82. Appellate deference is afforded due to “the advantageous position of the trial judge who actually saw and heard the witnesses”: R. v. C.R., 2010 ONCA 176, at para. 31.

The Judge’s Use of the Complainant’s Notes

[12] Mr. Deva submits that the trial judge erred in her reliability analysis by relying on the complainant’s detailed description made on her phone immediately after the incident. The detailed description recorded by the complainant was consistent with the Mr. Deva’s appearance captured on the security camera footage at Union Station and his subsequent description.

[13] Mr. Deva submits:

Not only is the complainant’s ability to describe the Appellant not indicative of the reliability of her recollection while waking up from a deep sleep to determine if she was touched, but, more importantly, the accuracy of her description lends no support to her reliability generally.

[14] Essentially, Mr. Deva’s position at trial was that the reliability of the complainant’s evidence was suspect because:

i. the complainant had been awaken from a deep asleep; ii. the bus was dark; iii. it was dark outside; and iv. the interaction with Mr. Deva was brief, 10-15 seconds (at the outside 20 seconds) before both changed their seats.

[15] What the complainant observed of the person, sitting beside her in those 10-15 seconds (at most 20 seconds) in the dark, was reduced to a detailed description of that person on her phone.

[16] The description the complainant noted on her phone, immediately after waking up from a deep sleep, was consistent with Mr. Deva’s description as he got off the bus and was consistent with the description of Mr. Deva at the Union Station Bus Terminal.

[17] There was no evidence that the complainant, after having identified Mr. Deva as the person who had touched her, used the balance of the bus trip to make or alter her description by looking at Mr. Deva. This is particularly relevant given that the complainant had moved nearer the front of the bus and Mr. Deva had moved nearer the rear of the bus, in a darken bus, at night.

[18] In my view, given the fact that the accused, at trial, challenged the complainant’s reliability of her observations and recollection of the events, because she had awaken from a deep sleep, the trial judge was properly entitled to use the complainant’s notes made immediately after the touching she described and the comparison to Mr. Deva’s actual description that evening before and after the event, as a factor to support the complainant’s reliability generally.

[19] I reject this ground of appeal.

Improper use of the complainant’s prior consistent statement

[20] The trial judge stated:

Though there were some inconsistencies in Ms. Jessome’s evidence, none of them were material, and nothing in her evidence or cross-examination caused me to doubt whether she was doing her best to tell the truth. I find her evidence offers some support for Ms. Behensky. According to Ms. Jessome, her attention was drawn to Ms. Behensky when she overheard a commotion behind her and saw Ms. Behensky standing up shouting, “Don’t fucking touch me.” Ms. Behensky’s reaction as observed by Ms. Jessome is consistent with Ms. Behensky’s account and also, consistent with someone having just experienced an unwanted touch by a stranger… As with many he said, she said cases, there’s not much by way of independent evidence that corroborates Ms. Behensky’s account however, as previously mentioned, the evidence of Ms. Jessome does provide some independent support for Ms. Behensky’s allegations.

[21] Mr. Deva submits the use of Ms. Jessome’s evidence as “some independent support” for the complainant’s evidence, was improperly admitted as some evidence of corroboration of the complainant’s evidence. Mr. Deva submits Ms. Jessome’s evidence constituted a prior consistent statement which is presumptively not admissible. One exception, recent fabrication, was not an issue in this trial.

[22] The use in this case was not improper.

[23] The driver, Ms. Jessome, testified that she saw and overheard the complainant say: “Don’t fucking touch me” at the time of that 10-15 second interaction between the complainant and Mr. Deva.

[24] The trial judge was entitled to use the complainant’s spontaneous reaction as evidence that something had occurred consistent with the complaint’s evidence.

[25] Post offence demeanour evidence or the emotional state of a complainant may be used as some evidence to support the allegation of sexual assault. See R. v. S.R., 2023 ONSC 351 at para. 109:

[109] I have also considered the demeanour evidence. Post-event demeanour evidence, or the emotional state of a sexual assault complainant, may be used as circumstantial evidence to support an allegation of sexual assault: see R. v. J.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 17-18, rev’d on other grounds 2011 SCC 17, [2011] 1 S.C.R. 628 (affirming this ground at paras. 40-41); R. v. Mugabo, 2017 ONCA 323, 348 C.C.C. (3d) 265, at para. 25.

See also R. v. A.J.K., 2022 ONCA 487 at para. 43.

[26] In this case the evidence is not typical post-event conduct significantly after the alleged sexual assault. In this case, it is essentially conduct, reaction and demeanor contemporaneous with the allegation of the sexual assault. Evidence of demeanor or emotional upset of a complainant at or proximate in time to the alleged offence is properly admissible to as some evidence to support the complainant’s allegation of the sexual assault.

[27] I find nothing impermissible in the trial judge’s use of Ms. Jessome’s evidence.

[28] I reject this ground of appeal.

Failing to deal with Physical Ability to touch as described

[29] Mr. Deva submits that the trial judge failed to adequately deal with the physical ability to touch as described by the complainant.

[30] This was a live issue at trial. During the trial, Mr. Deva demonstrated how this was, according to him, not possible. I note that Mr. Deva’s counsel acknowledges, at this appeal, that the touching as described is “not impossible” but pursues the submission that the trial judge did not fully and properly deal with this issue.

[31] In my view, the trial judge fully and properly dealt with this issue:

Moreover, Mr. Deva demonstrated in court the physical impossibility of him having touched Ms. Behensky’s left breast in the manner she described. On behalf of the Crown, Ms. Tarjan urges me to reject Mr. Deva’s evidence for two principal reasons. First, the in-court demonstration by which Mr. Deva demonstrated the impossibility of having touched Ms. Behensky in the manner she described, was completely under Mr. Deva’s control, and that if he had not been restricted by the suit he wore while testifying, he could have reached his hand sufficiently far to touch Ms. Behensky’s left breast.

Lastly, I found Mr. Deva’s demonstration of the purported impossibility of touching Ms. Behensky in the manner she described, was unconvincing. In demonstrating for the court how it would have been impossible to reach his right hand under his left as described by Ms. Behensky, the fingers on Mr. Deva’s right hand barely emerged from under his left arm. It was very clear to me that he was not making an effort to reach out further with his right arm. And his claim that to do so would cause him pain, was unconvincing, especially since there was no evidence, he was physical injured or physically impaired. I found nothing improbable about Ms. Behensky’s description as to how Mr. Deva touched her. In fact, by reaching out and touching Ms. Behensky in the manner she described, Mr. Deva would have been able to remain in a forward-facing position without having to turn his body towards Ms. Behensky.

[32] The trial judge had the benefit of the viva voce evidence and the demonstration in court. There is no palpable and overriding error in the trial judge’s finding on this issue.

[33] I reject this ground of appeal.

Misapprehension of the Evidence

[34] Mr. Deva submits that, at one point, the trial judge misapprehended the evidence by referring, at one point in her reasons, that Mr. Deva’s hand was on the complainant’s right breast, whereas the complainant had testified that Mr. Deva’s hand was on her left breast.

[35] It must be noted that, throughout the balance of the reasons (including in the same paragraph referenced in Mr. Deva’s appeal), the trial judge referred to the touching on her “left” breast.

[36] Reading the reasons as a whole, I am not persuaded that the trial judge misapprehended the evidence in a material way. Rather, it appears, that this reference to the “right” breast, was simply a single erroneous reference in the trial judge’s reasons.

[37] This ground of appeal is rejected.

Conclusion

[38] The appeal is dismissed.

RSJ RICCHETTI Released: April 06, 2023