Court File and Parties

COURT FILE NO.: CR-21-101341-00AP DATE: 2023-09-20

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HIS MAJESTY THE KING Andrea MacGillivray, for the Respondent

- and -

KEVIN ATTIPOE Stephen Gehl, for the Appellant

HEARD: June 21, 2023 The Honourable Justice Catrina D. Braid

Reasons on Appeal

On appeal from the decision of February 26, 2021, by Justice Wayne Rabley of the Ontario Court of Justice.

I. OVERVIEW

[1] The appellant Kevin Attipoe was convicted of a single count of sexual assault after a trial in the Ontario Court of Justice. He appeals his conviction and seeks to introduce fresh evidence at his appeal. He does not appeal his sentence.

[2] The appellant argues that the trial judge erred in his credibility assessment by failing to take into account his racialized background, and by relying on stereotypical and irrelevant considerations.

[3] The following issues arise on this appeal:

A. Should the fresh evidence be admitted? B. Did the trial judge err in his credibility assessments?

[4] For the reasons that follow, I dismiss the appeal.

II. FACTUAL BACKGROUND

[5] The appellant and the complainant met on an online dating app. The complainant drove to the appellant’s residence for their first date.

[6] There was a physical interaction between them. The complainant alleged that the appellant forcibly kissed her multiple times and dry humped her. The appellant admitted to kissing her once, but stated that it was consensual. He denied everything else.

III. THE TRIAL JUDGE’S REASONS

[7] The trial judge recognized that it was not proper to choose between the complainant’s evidence and the appellant’s evidence. He noted that he had to apply the framework set out in R. v. W.(D.), [1991] 1 S.C.R. 742. He stated that the appellant is presumed to be innocent unless the Crown has proven the offence beyond a reasonable doubt.

[8] The trial judge found that the complainant was an excellent witness who was untouched in cross examination; that she handled difficult areas of evidence well; and that her evidence was detailed, well-explained and logical. The trial judge found no reason to question her credibility or reliability.

[9] The trial judge was not impressed with the appellant as a witness. He lied about his age in his dating profile and acknowledged that he represented himself with someone else’s photos. The trial judge provided examples of areas of the appellant’s evidence that did not make sense. He found the appellant was not a good or truthful witness on many things.

[10] The trial judge still went on to consider whether he had a reasonable doubt under the second branch of W.(D.). While he found the complainant to be credible and found the appellant not credible, he stated that he could not be certain, beyond a reasonable doubt, that the alleged sexual contact after the first kiss constituted sexual assault.

[11] With respect to the initial kiss, the trial judge provided a detailed description of the events leading up to it. In their evidence, the appellant and the complainant agreed that the appellant kissed her.

[12] The appellant testified that his purpose for registering a profile on the dating app was to hook up and to engage in casual encounters. The appellant stated in his evidence that he would never ask a woman if he could kiss her. He stated “you have to take a chance. If you get rejected, you get rejected”. The appellant acknowledged that, when the complainant went to leave, he stated “I feel like you don't like me”.

[13] The complainant testified that the kiss was forced. The trial judge found that the evidence supported the complainant's position that she did not consent to the kiss. On his own admission, the appellant made no effort to determine if she wanted to be kissed or whether she consented to him doing it. He simply took the chance.

[14] The trial judge found, beyond a reasonable doubt, that the first kiss was sexual assault because the appellant kissed the complainant without her consent. The trial judge found the appellant guilty of forcibly kissing the complainant and stated that the remaining allegations were not proven beyond a reasonable doubt.

IV. ANALYSIS

A. Should the Fresh Evidence be Admitted?

[15] The production of fresh evidence on appeal is only possible with leave of the appeal court. The overriding consideration must be the interests of justice. Fresh evidence must be relevant and credible. In addition, when taken with the other evidence adduced at trial, the fresh evidence must be expected to have affected the result. The probative value of the proposed fresh evidence must be considered in order to determine whether it is admissible on appeal: R. v. Levesque, 2000 SCC 47, [2000] 2 S.C.R. 487 at paras. 17-18, 24; R. v. Palmer, [1980] 1 S.C.R. 759 at p. 775.

[16] The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial. This will not be applied as strictly in a criminal case. The purpose of the due diligence criterion is to protect the integrity of the criminal process and to preserve the role of appeal courts: Levesque at paras. 19-20.

[17] The appellant seeks to introduce five separate pieces of fresh evidence. I decline to grant leave for any of this evidence to be admitted, for the following reasons:

i. Articles

[18] The appellant’s application to introduce fresh evidence states that he wishes to introduce “scholarly articles outlining the power imbalance, particularly in sexual assault cases between a [B]lack defendant and a White complainant.” The following is a summary of the articles that the appellant seeks to rely on:

1. “Rape, Racism and the Law”, published in 1983. This article describes the history in the United States of “the legal and societal focus of punishing Black men when the rape of [W]hite women is claimed”, and other topics. See Jennifer Wriggins, “Rape, Racism and the Law” (1983) 6 Harv. Women’s L.J. 103.

2. “Effect of Sexual Stratification by Race on Official Reactions to Rape”, an abstract (not the full article) of a study published in 1980 in the United States. It states that “[B]lack men who sexually assaulted [W]hite women received more serious charges and longer sentences.” See Gary F. LaFree, “The Effect of Sexual Stratification by Race on Official Reactions to Rape” (1980) 45:5 Am Socio Rev 842.

3. A 2018 report prepared for the sentencing judge in R. v. Morris, 2018 ONSC 5186 (Ont. S.C.), addressing “the existence and impact of Anti-Black racism in Canadian society generally.” See Morris at paras. 19-22.

[19] The appellant has not established how these articles would have been relevant to his trial. The first two articles are extremely dated and do not include any information about Canada.

[20] The third article was prepared for a sentencing hearing. It does not address how Anti-Black racism impacts the testimony of a Black male accused in a sexual assault case with a White complainant, nor how a trial judge could take this into account when assessing credibility in these circumstances. Leave will not be granted as the articles are not relevant. In addition, the appellant has not established how this proposed fresh evidence would have affected the result.

ii. Photographs of the Complainant

[21] The appellant wishes to introduce photographs of the complainant from social media, to show that the complainant is “a [W]hite woman”, and to show her tattoo, which appears to depict a dreamcatcher (an Indigenous symbol). The complainant and the appellant both testified about the tattoo.

[22] I am not satisfied that the photo establishes that the complainant is “a [W]hite woman”, or that her race is relevant. Leave will not be granted with respect to these photographs as the appellant has not established that they would have affected the result.

iii. Evidence of the Appellant’s Scar

[23] At trial, the appellant admitted that, on the dating app where he met the complainant, he intentionally used someone else’s photo and lied about his age to make himself appear younger as he preferred younger women. He chose a photo that he felt would be appealing. The trial judge considered this evidence, in part, to find that the appellant was not credible.

[24] Defence counsel states that the appellant was wearing a mask during the trial and his facial scar would have been hidden by the mask. On the fresh evidence application, the appellant provided an affidavit stating that he did not use his own photograph because he did not want people to see the scar on his face. He now seeks to introduce several photographs and invoices documenting cosmetic procedures that he has undergone to have a facial scar removed.

[25] It would have been open to the appellant to explain this reason for using the false photograph when he testified at trial, but he did not do so. The proposed fresh evidence provides a completely different explanation for using another person’s photo than the evidence given at trial. This raises further concerns about the appellant's credibility. A fresh evidence application is not an opportunity to fix answers given under oath after further reflection. This is not proper fresh evidence and will not be admitted.

iv. Google Maps

[26] The trial judge briefly mentioned the travel time that would have been required for the complainant to travel from work in Toronto to her home in Waterdown, and then to Kitchener where the appellant resided.

[27] The appellant seeks to rely on Google Maps and calculations based on Google Maps. He argues that there was no foundation for the trial judge’s estimation of the complainant’s travel times, and that the estimate was wrong. However, he also submits that the consideration of travel time is irrelevant.

[28] It is well known that Google Map travel time estimates fluctuate depending on traffic conditions when the trip destination is entered. Even if these Google Map calculations accurately predicted the travel time, I find that the proposed evidence would not have reasonably affected the result. This evidence will not be admitted.

v. The Complainant’s Marital Status at the Time of Sentencing

[29] In the victim impact statement, there was a reference to the complainant being married at the time of sentencing (almost two years after the incident). There is no evidence about her marital status at the time of the incident or at the time of trial.

[30] The appellant states that, had he known her marital status, he would have cross-examined her about her relationship at the time of trial and her potential motive to fabricate. However, it was open to the appellant to cross-examine the complainant about possible motives to fabricate, including other relationships.

[31] I conclude that the proposed fresh evidence regarding the complainant’s marital status would not have affected the trial outcome.

vi. Conclusion re Fresh Evidence Application

[32] The criterion of due diligence is not a condition precedent to the admissibility of fresh evidence in criminal appeals, but it is a factor to be considered in deciding whether the interests of justice warrant admission of the evidence: Levesque at para. 14. The first four pieces of proposed fresh evidence could have been adduced at trial but were not. It is unclear why they were not adduced, and this factor weighs against their admission.

[33] It is not in the interests of justice to admit any of the proposed fresh evidence on appeal. Therefore, leave is not granted for their admission.

B. Did the Trial Judge Err in his Credibility Assessments?

i. Standard of Review on Appeal from Conviction

[34] Credibility findings are entitled to deference. Trial judges can see and hear a witness testify, which gives them a significant advantage in assessing credibility: R. v. J.J.B., 2013 ONCA 268, 305 O.A.C. 201 at para. 23.

[35] On appeal, deference must be given to the findings of fact made by the trial judge who saw and heard the witnesses. Deference must also be given to factual inferences made by the trial judge, as they had intimate exposure to all the evidence, leaving them in a better position to draw these inferences. Findings of fact will not be reversed unless the trial judge has made a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 10.

[36] Appellate courts are not to place an impossible burden on busy trial courts in terms of the writing of reasons. An appeal court cannot intervene merely because it believes the trial court did a poor job of expressing itself. An accused has a right to adequate reasons, not perfect ones: R. v. Tzarfin, (2005), 201 O.A.C. 183 (C.A.) at para. 9; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 at para. 20.

[37] Deficiencies in the trial judge's credibility analysis will rarely justify intervention on appeal. However, a failure to sufficiently articulate how credibility concerns were resolved may constitute a reversible error. The focus of review is on whether the trial judge's reasons explain to the accused why the trial judge was left with no reasonable doubt: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 26.

[38] While it is useful for a judge to attempt to articulate the reasons for believing a witness on a particular point, the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. That does not make the reasons inadequate. Assessing credibility is a difficult matter that does not always lend itself to precise and complete verbalization: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 49.

[39] An appellate court must take a functional and contextual approach when reviewing a trial judge's reasons. Particularly in cases where credibility and reliability of witnesses are the primary issue, the trial judge’s findings are deserving of particular deference. The trial judge has the benefit of the intangible impact of conducting the trial. The job of the appellate court is not to scrutinize the text of trial reasons in search for error: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 69, 76, 81.

ii. Issues Raised by Appellant

[40] The appellant makes several submissions regarding alleged errors made by the trial judge in his credibility assessments. I do not accept these submissions, for the following reasons:

a. The Trial Judge Was Not Required to Mention the Race of the Appellant

[41] The appellant argues that the trial judge failed to take into account that the appellant’s status as a Black male required special care and consideration to be given to his evidence, particularly as it related to issues surrounding consent or reasonable belief in consent. The appellant states that it is an error in law to ignore the role that systemic racism plays in credibility assessments, especially in cases of alleged sexual assault by Black men upon White women.

[42] There is an evolving line of caselaw that has recognized the negative impact of Anti-Black racism in Canadian society. Court have recognized the admissibility of pre-sentence reports and expert reports outlining negative stereotypes, difficulties in upbringing and other social factors, to be considered at sentencing (for example, R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641 at para. 56). Courts have also recognized that a trial judge must consider how a reasonable person of similar racial background would perceive their interaction with police to determine whether they are detained (for example, R. v. Lafrance, 2022 SCC 32, 472 D.L.R. (4th) 1 at para. 56).

[43] In R. v. Theriault, 2021 ONCA 517, 157 O.R. (3d) 241 at paras. 141-146, the Ontario Court of Appeal held that “it is incumbent on trial judges to consider relevant social context, such as systemic racism, when making credibility assessments”. In that case, the accused off-duty police officers severely beat the victim and then were permitted to handcuff him when uniformed police arrived. The Court of Appeal held that the police treatment of the victim was not an excuse for him to lie to police; however, the trial judge properly recognized context, historical difficulties and the victim’s understandable distrust of law enforcement when assessing his credibility.

[44] The appellant argues that the Theriault decision requires every trial judge to specifically state in their reasons when an accused in a sexual assault is a Black man and the complainant is a White woman, and to take this into account when assessing the accused’s credibility. The appellant submits that the trial judge committed an error in law by failing to mention the race of the accused and complainant in this case, and further by failing to take that into account in assessing credibility.

[45] I do not accept these submissions. Defence counsel appears to be arguing for the court to conduct a different assessment of credibility of a Black male accused in every sexual assault case when the female complainant is White, because of the history of mistreatment of Black men.

[46] These submissions distort the Court of Appeal’s ruling in Theriault, which directed trial judges to consider “relevant social context”. In Theriault, the victim’s distrust of police was due to several specific factors that existed in that case, and which provided the relevant social context.

[47] The appellant has not established what social context should have been considered in this case (other than a statement that there is a “power imbalance” between a Black male accused and White female complainant in a sexual assault case). There is no evidence that racial stereotypes played any role in the credibility assessment in this case.

[48] I therefore conclude that the trial judge did not commit an error of law by failing to mention the race of the appellant.

b. The Trial Judge Did Not Rely on Impermissible Stereotypes

[49] The appellant argues that the trial judge rejected his evidence regarding consent for irrelevant and stereotypical reasons based on how the judge thought a “gentleman” should behave. However, the word “gentleman” does not appear anywhere in the Reasons for Judgment.

[50] I reject the submission that the trial judge relied on stereotypical reasoning. The trial judge carefully explained the findings that he made based on the evidence at trial.

c. The Trial Judge’s Credibility Assessments are Entitled to Deference

[51] The appellant argues that the trial judge applied a more rigorous analysis to the appellant’s evidence than the complainant’s evidence, which resulted in a misapplication of the W.(D.) test for determining credibility and reasonable doubt.

[52] I do not accept this submission. This argument 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 trial judge failed to say something they could have said in assessing credibility, or that they failed to expressly set out legal principles relevant to that credibility assessment. To succeed with this argument, the appellant must point to something (in the reasons or 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: R. v. S.S.S., 2020 BCCA 180, 389 C.C.C. (3d) 337 at para. 70.

[53] In this case, the trial judge conducted a thorough analysis of the complainant’s evidence and provided detailed reasons why he found her to be credible. He also conducted a thorough review of the appellant’s evidence and provided detailed reasons why he found that the appellant was not a good or truthful witness about many things, and why he disbelieved him. The appellant has not pointed to anything specific to make it clear that the trial judge applied different standards. This argument must fail.

[54] There is no basis to interfere with the factual and credibility findings of the trial judge. Those findings were reasonable and supported by the evidence. The trial judge was in the best position to assess credibility, and his findings should be given deference. The trial judge made no palpable or overriding error.

d. The Verdict is Not Unreasonable

[55] The appellant submits that the verdict is unreasonable against the weight of the evidence. I do not accept this submission.

[56] An appeal court can only overturn a trial judge’s conclusions where it is determined that the finding cannot reasonably be supported by the evidence: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 at para. 10.

[57] It is the function of a trial judge to make findings of fact and draw proper inferences from the evidence. The trial judge’s findings are well supported by the evidence. There was no palpable and overriding error warranting appellate intervention.

V. CONCLUSION

[58] For all of these reasons, the application for leave to introduce fresh evidence and the appeal from conviction are dismissed.

Braid J. Released: September 20, 2023